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n e :p o r t s
OF
CASES ARGUED AND DETERMINED
IN
rn
HE SUPREME COURT
4
OF THE
STATE OF ILLINOIS.
VOL. III.
BY CHARLES GILMAN,
COUNSELOR AT LAAV,
VOLUME VIII.
WITH NOTES BY
HON. W. H. UNDERWOOD.
ST. LOUIS :
PUBLISHED BY W. J. GILBERT.
E. B. MYERS, CHICAGO.
Entered according to Act of Congress in the year 1870, by
J.W.GILBERT,
In the Clerk's Office of the District Court of the United States for the Eastern
District of Missouri .
Entered according to Act of Congress in the year 1847, by
CHARLES GILMAN,
In the Clerk's Office of the District Court of the District of Illinois.
Economical Printing Co.,
3rd. & Walnut Sts.
St. Louis,
Mo.
JUSTICES
OF THE
SUPREME COURT OF THE STATE OF ILLINOIS,
DURING THE PERIOD OF THESE REPORTS.
Date of Resignation.
January 11 , 1847 .
January 25, 1S47.
WILLIAM WILSON, Chief Justice.
SAMUEL D. LOCKWOOD, Associate Justice.
THOMAS C. BROWNE, " "
WALTER B. SCATES, " "
SAMUEL H. TREAT, " «
JOHND. CATON, " "
RICHARD M. YOUNG, « "
GUSTAVUSP. KOERNER, (1) " "
NORMAN H. PURPLE, (2) " "
WILLIAM A. DENNING, (3) "
JESSE B. THOMAS, (4) " "
ATTORNEY GENERAL,
DAVIB B. CAMPBELL. (5)
REPORTER,
CHARLES OILMAN.
CLERK,
EBENEZER PECK.
(1) Appointed by the Governor, April 2, 1845; elected by the General As-
sembly, December 19, 184G, and commissioned December 21, 1846.
(2) Appointed by the Governor, August 8,1845; elected by the General
Assembly, December 19, 1846. and commissioned December 21, 1846-
(3) Elected by the General Assembly in place of Walter B. Scates, resigned,
January 18, 1847, and commissioned January 19, 1847.
(4) Elected by the General Assembly in place of Richard M. Young, re-
signed, January 26, 1847, and commissioned January 27, 1847.
(5) Elected by the General Assembly, December 19, 1846, in place of James
A. McDougall, whose term of office had expired, and commissioned December
21, 1846.
SUPREME COURT, March 1, 1S47.
Tlie'present clerk of this Court having tendered his resignation to take effect
on the 15th day of June next, It is ordered by the Court that RigdonB. Slocumb
be appointed the clerk of this Court from and after the 15th day of June next.
A true copy from the Records.
Attest; Ebenezer Peck, C. S. C.
CIRCUITS OF THE JUSTICES.
1st Circuit,
2d
do.
3d
do.
it
a
4th
do.
5th
do.
6th
do.
7th
do.
<,i
u
8th
do
9th
do.
Justice LOCKWOOD.
« KOERNER.
« SCATES.
» DENNING.
Chief Justice WILSON.
Justice PURPLE.
BROWNE.
YOUNG.
THOMAS.
TREAT.
CATON.
TABLE OF GASES.
Allen v. Belcher 594
Anderson v. Ryan 583
Baker, Snow v 258
Ballance v. Fortier 291
v . Curtenius 449
Barrett, Howell v 433
Baxter v. The People 368
Beanies , Buckmaster v 197
Beebe v, S wartwout 162
Belcher, Allen v 594
Bellingall v. Duncan 477
Bennett, Scott v 243
Berry, Turner v 541
Birch, ex parte 135
Boone v. Stone 537
Bowles v. Rouse 408
Brauigan v. Rose 123
v. Gurnee 130
Browne, People v 87
Brown v. Pease 191
, Finch v 4S8
Brunton, "Williams v 600
Brush , Jenkins v 18
Bryant v. Dana 343
Buckmaster v. Beames 1
v. 97
v. Grundy 626
, Hailman v. 498
Bulkley , Hoard v 154
Butler, Longwith v 32, 74
Campbell, Trumbull v 502
, People v 466
Cantrill v. The People 356
Carpenter v. The People 147
Chapman v. Shattuck 49
Cheever, Lombard v 469
Chenot v. Lefevre 637
Clark, Gear v 64
Cooper v. Crosby 506
Corbin v. Shearer 482
Corey v. Russell 366
Cowls v. Cowls 435
Crisman v. The People 351
Crosby, Cooper v 506
Curry v. Hinmau 90
Curtenius, Ballance v 449
Dana, Bryant v 343
Davidson, Miller v 518
Duncan, Bellingall v 477
Dunlap v. Ennis 286
Edgar Co. v. Mayo 82
Ennis, Dunlap v 286
Ex parte Birch 134
Fell v. Price 1S6
Ferguson v. Miles 358
v. Sutphen 547
Finch v. Brown 488
Fortier, Ballance v 291
VI
TABLE OF CASES.
Garrett v. Stephenson 261
Gautier, Whitaker v 443
Gear, Griggs v 2
v. Clark 64
, Harback v 18
Granger v. Warrington 299
Greenup v. Stoker 202
Greene, McConnellv 590
Gregory, Stow v 575
Griggs v. Gear 2
Grundy, Buckmaster v 626
Gurnee, Branigan v 130
Hadduck, Russell v 233
Hailman, Semple v 131
v. Buckmaster 498
Harback v. Gear 18
Harber, Lusk v 158
Hawks v. Lands 227
Henderson v. "Welch 340
Hinman , Curry v 90
Hoard v. Bulkley 154
Holt, Purviance v 394
Howell v. Barrett 433
Jenkins v. Brush 18
Judy, Williams v 282
Kenyonv. Sutherland.
99
Lalor v. Wattles 225
Lands, Hawks v 227
Lefevre, Chenot v 639
Lombard v. Cheever 469
Longwith v. Butler 32
v. 74
Lusk v. Harber 158
Mason v . Richards 25
, Young v 55
Mayo, Edgar co. v 82
McConnell v. Greene 590
McCluskey v. McNeely 578
McNeely, McCluskey v 578
McQuoid v. The People 76
Miles, Ferguson v 358
Miller v. Davidson 518
Monaghan, Roney v 85
Moore v. Purple 149
Munsell v. Temple 93
Passfield v. The People 406
Patev. 644
Pearl v. Wellman 311
Pease , Brown v 191
People, Sawyer v 53
, v. Percells 59
, Rainey v 71
, McQuoid v 76
, v. Browne 87
, Carpenter v 147
, Sans v 327, 383
. Crisman y 351
, Cantrill v 356
, Baxter v 368
, Passfield v 406
v. Campbell 466
, Pate v 644
Percells, The People v 59
Phelps, Rhines v 455
Price, Fell v 186
Purple, Moore v 149
Purviance v. Holt 394
Rainey v. The People 71
Rector v. Rector 105
Rhines v. Pbelps 455
Richards, Mason v 25
Roby, Wilcoxon v 475
Robinson, Shelburne v 697
Roney v. Monaghan 85
Rose, Branigan v 123
Rouse, Bowles v 408
Russell v. Hadduck 233
, Corey v 366
Ryan, Anderson v 583
Sans v. The People 326, 338
Saunders, Turney v 239
Sawyer v. The People 53
Scottv. Bennett 243
v. Shepherd 483
Sears v. Sears 47
Semple v. Hailman 131
TABLE OF CASES.
VII
Shaeffer v Weed 511
Shattuck-, Chapman v 49
Shearer, Corbin v 482
Sheltrarne v. Robinson 597
Shepherd, Scott v 483
Stales, Switzer v 529
Snow v. Baker 258
State Bank v. Wilson 89
Stevanson, Garrett v 261
Stoker, Greenup v 202
Stone, Boone v 537
Stow v. Gregory 575
Sutherland, Kenyon v 99
Sutphen, Ferguson x 647
Swartwout, Beebe v 162
Switzer v. Stales 529
Sykes, Welch v 197
Taylor, Wright y 193
Temple, Munsell v 93
Thompson, Wadsworth v 423
Thrall, Watson v 69
Trumbull v. Campbell 20 j
Turney v. Saunders 239
Turner v. Berry 541
Wadsworth v. Thompson 423
Wallace, Welch v 490
Warrington, Granger v ■ 299
Watson v. Thrall 69
Wattles, Lalor v 225
Weed, Shaeffer v 511
Welch v. Sykes 197
, Henderson v 340
Welch v. Wallace 490
Wellman, Pearl v 311
Whitaker v. Gautier 443
Wilcoxon v. Koby 475
Williams v. Judy 282
v. Brunton 600
Wilson, State Bank v 98
Wright v. Taylor 163
Young v. Mason 55
DECISIONS
OF
THE SUPREME COURT
OF THE
STATE OF ILLINOIS,
DECEMBER TERM, 1845, AT SPRINGFIELD.
Nathaniel Buokmaster, who sues for the use of George W.
Denham, plaintiff in error, v. MANNING Beames et al.f de-
fendants in error.
Error to Madison.
In a suit brought by one for the use of another, the defendant filed his affidavit
showing the insolvency of the person for whose use the suit was brought,
and moved that he be required to give security for costs. Held, that as
the nominal plaintiff was a citizen of the State, and liaole for the costs, the
motion should be denied.
In this case the defendants in error filed an affidavit in the
usual form, alleging the insolvency of Denham, the plaintiff
in interest, and moved the Court that he be required to give
security for costs.
gil. in. — 1.
SUPREME COURT.
Griggs et al. v. Gear.
L. Trumbull, for the plaintiff in error.
J. Gillespie, for the defendants in error.
The opinion of the court "was delivered by
Treat, J. An action was instituted in the circuit court
in the name of Buckmaster, to the use of Denham, against
Beames. Judgment was rendered for the defendant, and the
plaintiff prosecuted a writ of error to this court.
The defendant in error now presents an affidavit, showing
the insolvency of Denham, and moves that he be required
to give security for costs.
We refuse the application. The nominal plaintiff is a
citizen of the State, liable for the costs of the case, and, for
aught that it shown, fully able to pay them. If so, the de-
fendant is sufficiently indemnified, and further security Is
unnecessary.
Motion denied.
David R. Griggs et al.
appellants, v.
appellee.
Hezekiah H. Gear,
Appeal from Jo Daviets.
Bills of review are in the nature of writs of error, filed in the same Court
where the decree in the original cause was entered, calling upon the Court
to review and re\erse the former decree. They are of two kinds, first, for
error of law, and secondly, upon newly discovered evidence, (a) A bill of
review may be brought for error of law, which is apparent upon the face
of the decree il self, and no question is raised as to the propriety of the
determination of the matters of tact, or the evidence upon which the de-
cree is founded, but it is only upon matters of law arising upon the facts.
So it may be brought, by reason of newly discovered evidence, and this
evidence must be set forth, and it must be stated, also, that it has arisen
since the final decree/or has since come to the knowledge of the party, and
that he was guilty of no neglect in not discovering and producing it before.
Furthermore, the evidence must not be cumulative, and must be of an
important and decisive character, if not conclusive.
A party may bring a bill of review for error apparent, as a matter of right
without the leave of the Court; but allowing a bill of review ior newly
discovered evidence rests in the sound discretion of the Court,
(a) Grubb vs. Crane, 4 Scam. R. 153— Post 2 541 ; Evans vs. Clement, 14 111. 206;
Garrett vs. Moss, 22 111 . R. 363 ; Gautner, vg. Emerson, 40 IU. R. 296.
DECEMBER TERM 1845.
Griggs et al. v. Gear
An original bill in the nature of a bill of review may be brought for the pur.
pose of impeaching a decree or fraud. It is a matter of right, and may
be filed at any time without the leave of Court, and may be brought for
fraud in fact or fraud in law. So, a bill partaking of the tworfold charac-
ter of a bill of review for errors apparent and of an original bill in the na-
ture of a bill of review to reverse a decree for fraud, may be filed withou
the leave of Court.
Before filing a bill for a review, the party who seeks to reverse the former de-
cree, must have performed it ; as, if it be for the delivery of possession of
land, he must have done so ; or, for the payment of money, he must have
paid it. If, however, by complying with the decree, he would extinguish
a right, as the execution of an acquittance or the like ; or if the party
show himself absolutely unable to comply with the decree, as, for instance
where he is required to pay a sum of money, and he is insolvent, he may
show the tacts to the Court and get released from the performance before
he files the bill.
In chancery, a party will be afforded relief where his appearance in the suit
has been entered without authority, and where the solicitor is unable to
indemnify the party for the damages which he must sustain by the uuau.
thorized act ; and that, too, whether the solicitor acts under a misappre-
hension of his duty, or misunderstanding of his authority, or from a fraud-
ulent intent.
After a defendant has demurred to a bill of review, he cannot raise an object
tion to the right of the complainant to file the bill. To avail himself of such
an objection, he should move the Court, on his first appearance, to strike
the bill fr om the files, or to dismiss the suit, {a)
Bill in Chancery to review and reverse a former decree,
&c, in the Jo Daviess circuit court, filed by the appellants
against the appellee. There was a demurrer to the bill, and
at the March term 1845, the Hon. Thomas C. Browne pre-
siding, the demurrer was sustained and the bill dismissed at
the costs of the complainants, who appealed to this court;.
The material portions of the bill nppear in the opinion of
the court.
J. W. Chickering, for the appellants.
Errors on the face of the record may always be taken ad-
vantage of by a bill of review. Story's Eq. PI. § 403, and
cases cited in the notes.
Though a bill of review could not originally be brought
until decree performed and costs paid, there are, still, excep-
tions, and we bring ourselves within those exceptions. Story's
Eq. PI. § 406 ; 1 Vera, 264, side paging ; 2 Johns, ch. R.
491 ; 3 Barb. & Har. dig. 54, § 104.
The court had no jurisdiction of the person or subject
(a) Limitations to Bills of Review, 10 Wheat. U. S. R. 146.
SUPREME COURT.
Griggs et al. v. Gear.
matter of the suit. The solicitors were not authorized to
enter the appearance of the party, who had not been brought
into court by proper service.
A motion interposed rto dissolve an injunction is not an
appearance in the suit for any other purposes. 1 Barbour's
ch. Pr. 78; 1 Hoffman's ch. Pr. 170.
That an attorney or solicitor has appeared without author-
ity, is good ground to set aside a judgment at law or decree
in chancery. Cox v. Nichols, 2 Yeates, 546 ; Crichfield
v. Porter, 3 Hamm. 518 ; Smith v. Bossard, 2 McCord's ch.
R. 409 ; 3 Barb. & Har. dig. 47, § 17 ; particularly if the
attorney or solicitor is responsible. Denton v. Noyes, 6
Johns. 296 ; Meacham v. Dudley, 6 Wend. 514 ; Rust v.
Frothingham, Bre. 258. So also, in the case of the negli-
gence, or ill advice of the solicitor. Millspaugh v. McBride,
7 Paige, 509 ; Tripp v. Vincent, 8 do. 179.
Where there is an adequate remedy at law, courts of
equ'ty will grant no relief. 1 Storyss Eq. Jur. 620, § 670 ;
1 Fonblanque's Eq. , Book 1 ch. 3, § 3.
Assumpsit lies for the non-performance of an agreement
to furnish funds to carry on a copartnership, Collyer on
Partnership, B. 2, ch. 2, § 2, (1, 3.) ; lb. 2, eh. 3, §1 ; Ven-
ning v. Leckie, 13 East, 7 ; 8 Mass. 462 ; Story on Partn.§ 218 ;
Gow on Partn. 70.
After a bill is taken as confessed, the defendant has a right
to have notice of all subsequent proceedings. King v. Bry-
ant, 3 Mylne & Craig, 191 ; Hart v. Small, 4 Paige, 551 ;
l'Barbour's [ch. Pr. 479 ; Bennett's ch. Pr.
After a defendant has suffered a bill to be taken as con-
fessed, he may be relieved at the discretion of the court.
Wooster v. Woodhall, 1 Johns, ch. R. 539 ; Parker v. Grant,
lb. 630 ;Beckman v. Peck, 3 do 415.
J. J. Hardin & D. A. Smith, for the appellee.
I. Bills of review are of two kinds :
1. Bills which seek to review or reverse a case formatter
apparent on the record. In such cases it is in the nature of
a writ of error ; and the bill will not be sustained, unless the
DECEMBER TERM, 1845.
Griggs et al. v. Gear.
error is so apparent that the case would be reversed if a writ
of error had been prosecuted. Story's Eq. PL 322, 324 ;
2 Maddock's Ch. 536-8 ; 2 Smith's Ch. Pr. 48, 50, 53 ; Story's
Eq. PI. §§ 403, 404, 405,407; and,
2. Bills which ask for review on account of newly disco-
vered testimony, applicable to the issue in the case when
tried. Nor will it avail, or be permitted to allege new tes-
timony not applicable to the issue tried. 2 Mad. Ch. 536 ;
2 Johns. Ch. R. 488 ; 3 do. 124 ; 2 Smith's Ch. Pr. 59 ; Story's
Eq. PI. § 412 ; 3 Barb. &. Har. Dig. § 27 ; 2 Har. & Johns. 230.
II. This bill must be treated as a bill filed for error ap-
parent on the record.
1. It so states in the body of the bill ;
2. It was filed without any leave first asked or had. This
is a right in bills of review for error apparent. 2 Smith's
Ch. Pr. 53, and cases cited ; and,
3. It assigns various alleged errors in the case sought
to be reviewed.
Reasons why this is not a bill of review, alleging new
facts :
1. No leave to file bill was asked. A bill alleging new
facts can only be filed after leave is first asked and obtained.
Story's Eq. PI. § § 412, 413 ; 2 Mad. Ch. 538 ; 1 Peters,
Dig. 367, §§ 17, 18, 19; 2 Smith's Ch. Pr. 56-7-8; 2
Vesey, 571 ;
2. No affidavit was made by complainants to the truth of
he bill. If complainants rely on newly discovered testi-
mony, it is certainly requisite that they should state these
facts under oath, and not be permitted to open a decree by
the irresponsible allegations of counsel. Story's Eq. PI.
§ 412 ; 3 Paige, 206 ; and,
3. The facts alleged to be new, are: 1. That Cowles &
Krum had no right to enter their appearance in the case ;
and 2, That they were not partners with Gear, and have a
good defence to the suit, if they get another hearing with
new proofs.
Whether Cowles & Krum were their authorized attorneys I
was not in issue in the trial of the case, therefore it is
SUPREME COURT.
Griggs etal. v. Gear.
not pertinent to the case, nor examinable by bill of review.
May v. Armstrong, 3 Marsh. 263 ; Talbot v. McGee, 4
Monroe, 377 ; Osborn v. United States Bank, 5 Peters'
Cond. R. 741.
As to their allegation that they were not partners with
Gear ; this was in issue. But no new fact is alleged which
was not known to appellants at the time of the trial.
III. There are various reasons why the demurrer should
have been sustained, owing to imperfections in complainants'
bill of review:
1. The decree was for the payment of $36,208.02 by
complainants to Gear. This has not been paid. Now the
authorities are explicit that "the decree must be complied
with before a bill of review can be sustained." Story's
Eq. PI. § 406 ; 2 Smith's Ch. Pr. 54-5-6 ; 2 Johns. Ch. R.
488; 3 do. 124;
2 "If: the party is unable to perform the decree, he must
move for an order to stay what is proper to be stayed, and
should swear to his inability." 2 Smith's Ch. Pr. 54-5 ;
Mellish v. Williams, 1 Vernon, 117 ;
3. Decree was that appellants should pay the costs, which
has not been done. "If costs have been decreed in the origi-
nal cause, they should be paid before the bill of review is
filed." 2 Smith's Ch. Pr 54-5;
4. If appellants seek for review on allegation of newly
discovered facts, still their bill is defective, and cannot be
sustained. If this bill was an application to the court for
leave, it was addressed to the discretion of the court
Story's Eq. PI. § 412 ;
5. Neither a bill of review nor a writ error will lie for
any exercise of discretion in the court. Story's Eq. PL
§ 417 ; 2 Madd. Ch. 538 ; 2 Duer's Pr. 474 ; Graham's Pr.
958 : Whiting v. U. S. Bank, 13 Peters, 15 ; and,
6. The bill should have stated all the facts constituting the
defence of appellants. This is not done, but it is alleged
that they have prepared answers which they wish to file in
the case sought to be reviewed. These answer are not
copied, nor is there any evidence that they were ever per-
DECEMBER TERM, 1845.
Griggs et al. v. Gear.
sented to the court. The new facts should also have been
sworn to. 1 Peters' Dig. 366, § § 7, 13.
IV. The first paragraph of appellants' abstracts states,
this is in part a bill of review for errors apparent on the
record, and in part an original bill to review, vacate and
reverse a former decree upon matters dehors the record,
and for fraud in procuring the said decree.
1. Now there cannot be any such amalgamation of bills ;
and "a plaintiff cannot put his bill in the alternative as a
bill of review, or if the court shall think it not so, then as a
bill of revivor and supplement." 2 Smith's ch. Pr. 53 ; 17
Vesey, 177 ; and,
2. "A supplemental bill in the nature of a bill of review
can only be filed on leave first granted by the court. 2
Smith's ch. Pr. 63, 64;; Story's Eq. PI. § 422.
The allegation of fraud is not sustained by any thing in
the bill, record, or affidavits.
V. "The usual defence to a bill of review is a demurrer."
2 Smith's ch. Pr. 55-6; Cooper's PI. 215; 3 Paige, 206.
If demurrer is sustained, it has all the effect of confirming
the decree, and terminates the suit. 2 Smith's ch. Pr. 56.
The demurrer was properly sustained.
1. The question for consideration is not, whether the
court below properly decided the case on the proofs and
merits ; but whether there is error apparent in point of law,
for which a writ of error would be sustained. Story's Eq.
PI. § 407 ; 2 Smith's ch. Pr. 51 ; Mellish v. Williams, 1 Ver-
non, 166 ; Filton v. Macclesfield, lb. 292 ; 3 Paige, 371 ;
Dougherty v. Morgan's Executors, 6 Monroe, 153 ; 2 Mad-
dock, 538 ;
2. If objection exists to the report of the Master, it should
have been taken below, and if a report of Master is deficient,
Vie defect cannot be cured upon a bill of review. 2 Mad-
dock, 541 ; 17 Vesey, 183 ; 3 Barb. & Har. Dig. § 98 ;
3. The questions referred to the Master were all pro-
per. Quantum Damnificatus. It is peculiarly proper for a
Master to decide the compensation and damages to be
allowed for violating a contract. 2 Story's Eq. Jur. 105-7 ;
4. All questions of litigation between partners are pe-
SUPREME COURT.
Griggs et al. v. Gear.
culiarly cognisable in Equity. 1 Story's Eq. Jur., 612, 614,
617 ; Story on Partnership, § 222 ;
5. As to laches of appellants. The report was made and
decree entered on the 23d day of March, 1844. Appellants
admit notice of both in their bill soon after the decree, in April,
1844. They might have applied to the court at its next term
to open the decree. R. S. chap. 21, § 18; Grubb v. Crane,
4 Scam. 155. Having neglected to do so, it is too late to
ask for redress by bill of review.
Chapter 21, § 15, Rev. Stat, gives appellants full remedy
if they were not served with process, or properly in coui-t
on the rendering of the decree. Two terms of the court
intervened before filing bill of review after they ackowledge
notice. See Story's Eq. PI. § 414.
VI. It is not competent or proper for appellants to allege
that they had no notice of the suit.
1. An appearance is a waiver of want of service on de-
fendant. 4 Paige, 439 ; 1 Barb. ch. Pr. 81, 82.
2. In bill of review, appellants admit that Cowles &
Krum were their attorneys to bring common law suit against
Gear. This is a branch of the same suit. Also admitted
by Krum in his affidavit.
3. The appearance of an attorney without authority is
binding. Breese, 258 ; 6 Johns. 34,' 296 ; 1 Pick. 461-2 ;
Graham's Pr. 44 ; 7 Pick. 137-8 ; 4 Monroe, 377 ; 3 Yerger
408 ; 1 U. S. Dig. 328, § § 70 72, 73, 81, 84, 90.
4. A defendant cannot plead [after an appearance entered
by an attorney ] that he was not served with process. 1
Peters' C. C. R., cited in 1 Peters' Dig., 290.
5. Defendant's appearance may be entered by his solicitor.
1 Smith's ch. Pr. 158.
6. An attorney may bring a second suit on a note after
being non-suited on his general retainer. 12 Johns. 315 ;
Graham's Pr. 46.
7. An attorney may bring a writ of error without consult-
ing his client. 16 Mass. 74.
8. Courts will not grant trials on account of the neg-
ligence or inattention of their attorneys. 1 J. J. Marsh. 471.
9. If their was no warrant of attorney, the Statute of
DECEMBER TERM, 1845.
Griggs et al. v. Gear.
Amendments and Jeofails, section 7, page 49, cures the
defect in the decree. 5 Peters' Cond. R. 741.
VII. But the question of the authority of Cowles & Krum
to enter appearance of appellants does not and cannot pro-
perly come up in this case :
1. If it is a newly discovered fact, yet it is not one perti-
nent to the issue then tried.
This bill of review being for error apparent, is like a writ
of error ; consequently, no question can be examined except
what appears in the record. On the record Cowles & Krum
appear to be solicitors of appellants.
2. The right of an attorney to appear cannot be questioned
in the Supreme Court, when it is not questioned in the
court below. 3 A. K. Marsh. 263 ; 5 Peters' Cond. R. 741 ;
4 Monroe, 377.
3. The proper remedy is, (in case Cowles & Krum were
not authorized to appear,) to ask leave of the court to open
the decree at the next term. Chancery Act, §18 ; Grubb v.
Crane, 4 Scam. 155.
4. Or to ask leave within three years, under §15, Chan-
cery chapter, by filing affidavits, &c, in support of the prayer
of the petition and bill.
The allegation of fraud made in the bill of review, is not
sworn to, nor does it appear in any way on the record.
Cowles & Krum had authority to collect the claim of Gear.
This is not denied in the affidavits of appellants accompanying
the bill of review, but they enter a special plea of not having
authorized them to appear in that particular suit. Now, the
claim having been entrusted to Cowles & Krum for collec-
tion, they were authorized, as attorneys, to bring and defend
as many suits as were necessary to prosecute the claim to
collection. It was a matter, not a single suit, which was
entrusted to them.
J. Butterfield, on the same side.
The court will not extend the practice of filing bills of
review. They must be filed by leave of court, unless founded
10 SUPREME COURT.
Griggs et al. v. Gear.
on errors of law, when they may be pleaded as a matter of
right. Story's Eq. PI. §420.
For cases of petitions f orleave to file a bill of review, &c. ,
see 2 Johns, ch. R. 488, and 3 do. 125.
In this case, the bill was filed without the leave of court,
and it is a good ground of demurrer.
The court will infer notice of the suit to the party. If the
party was aggrieved by an unauthorized appearance of soli-
citors in his behalf, application should have been made in the
ourt below to review the cause on that ground.
This bill cannot be sustained for the causes set forth there-
in. The errors must be those of law, not because the decree
was contrary to proof, &c. 2 Madd. ch. 537.
A. Lincoln, for the appellants, replied at length to the ar-
guments of the counsel for the appellee.
The opinion of the court was delivered by
Caton, J. In the first place, it is necessary to ascertain
the nature and character of this bill, in order to understand
by what principles we shall be governed in the determina-
tion of the several questions which have been raised by the
defendant in support of his demurrer. It is insisted by him
that it is purely a bill of review, and must be governed by
the rules which are applicable to such bills, while it is insist-
ed by the complainant that although they have in some
parts of the proceedings called it a bill of review, yet it is
not so, strictly, but partakes partly of the character of a bill
of review, and partly of an original bill. Bills of review
are in the nature of writs of error, filed in the same court
where the decree in the original cause was entered, calling
upon the court to review, and reverse the former decree.
They are of two characters, first, for error of law and sec-
ondly, upon newly discovered evidence.
Firstly, a bill of review may be brought for error of law,
which is apparent upon the face of the decree itself. In such a
case no question is raised as to the propriety of the determi-
DECEMBER TERM, 1845. 1 1
Griggs etal. v. Gear.
nation of the matters of fact, or the evidence upon which
the decree is founded, but it is only upon matters of law as
arising upon the facts, which are to be taken as absolutely
true, as stated in the decree, that any question can be raised.
By decree here, must be understood, not only the final judg-
ment of the court, but the pleadings also, the substance of
which, according to the English practice, is recited in the
decree. So that in passing upon the errors assigned, in the
bill of review, the court will look through the bill, answer,
the facts as found, and determined in the original cause, and
into the adjudication made thereon.
Secondly, a party may file a bill of review for newly dis-
covered evidence. In such a case the bill must set forth the
newly discovered matter, and that it has arisen , since the
final decree, or has since come to the knowledge of the party,
and that he was guilty' of no neglect, in not discovering
and producing it before. The evidence must not be cumu-
lative, and must be of an important and decisive character,
if not conclusive, and most usually consists of documentary
evidence. A party may bring a bill of review for error ap-
parent as a matter of right without the leave of the court >
but allowing a bill of review for newly discovered evidence,
rests in the sound discretion of the court. It is, therefore,
necessary to apply to the court for leave to file this bill,
which may be refused, although the new facts might change
the decree, if the court is of opinion, looking at the whole
case, that innocent parties might be injured, or for any other
satisfactory reason. Before filing a bill of review, it is ne-
cessary that the party should pay the costs of the first cause,
and perform the decree, unless the party by performing the
decree, would extinguish some right ; such as executing a
release or the like, or the party is unable, from some cause,
to perform the decree, when upon special [application, the
court may allow him to file a bill of review without comply-
ing with the decree, (a)
There is another sort of bills for opening and reversing a
decree in the same court, very nearly allied to a bill of
review, the object of which is to impeach the former decree
(a) Horner vs. Zimmerman, 45111. R. 14.
12 SUPREME COURT.
Griggs et al.v. Gear.
for fraud. This is an original bill in the nature of a bill of
review, and ista matter of right, and may be filed at any
time without the leave of the court. This bill may be
brought for fraud in fact, or fraud in law. [Cooper's Eq.
PI. 96). There are other bills similar in their nature and
object; but it is unnecessary to mention them here. It is
not unfrequently the case, that one bill partakes of the
character of several of these and other bills. Such was the
case of Perry v. Phillip, s 17 Yes. 176, where Lord Eldon
says : " There is no objection to this bill, as being, on the
face of it, a bill of review and supplement, as in some cases,
the bill must of necessity be both a bill of review and a bill
of revivor, and in some, a bill of supplement also, in addition
to these two descriptions." So also of necessity may a bill
be filed seeking the reviewal and reversal of a former
decree, partaking both of the character of a bill of re-
view for errors apparent, and of an original bill in the
nature of a bill of review seeking to reverse a former
decree for fraud, both of which may be filed without the
leave of the court ; as for instance, suppose a b;ll is
filed against several defendants in which a decree is enter-
ed, which, as against one of the defendants, there is manifest
error on its face, but as against the other defendants, there
is no apparent error, but was in truth obtained by fraud.
Such, we apprehend, is the true character of this bill, and
it remains to *be seen whether, as such, it can be sustained.
This original bill on which the decree which is sought to
be reversed was entered, avers, that in 1835, the parties
entered in to an agreement of copartnership in the lead busi-
ness at Galena, by the terms of which, Griggs & Weld
were to furnish Gear with all the money which he should
want, and Gear was to superintend the business at Galena,
and ship the lead to Boston, to be sold by Griggs & Weld.
From the terms of the agreement, so far as we can learn
from the bill, Harback was to do nothing, either by advancing
capital or bestowing his personal attention upon the busi-
ness. He undertook to do nothing, unless what the law
would imply from his being named as one of the partners,
DECEMBER TERM 1845. 13
Mason v. Richards et al.
that he should share in the profits and loss of the business.
The bill avers that Griggs & Weld refused to furnish capital
according to the agreement, whereby Gear had suffered
damage to more than one hundred thousand dollars. It no
where avers that Harback had done anything improper, or
refused to do anything that he had agreed to do. It stated
that Griggs & Weld had sued Gear for over $13,000 for
goods furnished to him by them on account of said copart-
nership, which suit was sought to be enjoined by that bill.
In 1839, without any authority from the defendants in
the chancery suit, the attorneys of Griggs & Weld in the
suit at law which was enjoined, entered a motion in
the chancery cause to dissolve the injunction, which motion
was overruled it 1841, and in 1842 a' decretal order was
entered directing a special Master to take proof of the alle-
gations of the bill, and to ascertain and report the amount
of damages to which the complainant was entitled, if any,
by reason of the premises, against the defendants or either
of them. In 1844, the special Master reported, that by
reason of the failure of the defendants to fulfil their part
of the agreement, Gear had suffered a loss of- $50,000, from
which the Master had deducted $13,791.98, the amount of
goods furnished by Griggs & Weld to Gear, leaving a
balance due him from the defendants of $36,208.02, which
report was approved by the court, and the balance thus
found decreed to be paid to Gear by all the defendants
jointly.
The bill in this cause states the substance of the pro-
ceedings in the original cause, and makes an entire copy
thereof, an exhibit, and assigns a variety of errors in the
former decree, and prays that the same may be reviewed
and reversed. To this bill a demurrer was filed, which was
sustained by the court, and the bill dismissed, which decision
we are now called upon to reverse.
It has been before stated, as a bill of review, we cannot
question the truth of the facts upon which the court acted
in making up the decree, nor of the mode in which the
court below came to the determination of the existence of
those facts ; but we are only to examine and see if the
14 SUPREME COURT.
Griggs et al. v. Gear.
questions of law arising on those facts have been properly
determined. In doing this, however, we must look at the
whole record, and if we find that the court below found any
facts to exist and acted upon them, which are not founded
upon, or are inconsistent with the statements in the bill,
those facts must be rejected, because if the averments in
the bill do not warrant the judgment of the court, there is
an error on the face of the proceedings, for no proof could
legitimately be given to entitle the party to more relief
against any of the defendants than the averments in the bill
show that he ought to have. The proofs must necessarily
be confined within the statements of the bill. Taking, then,
all the statements of the bill to have been proved, and still
they could not possibly have sustained the decree against
Harback. By the complainant's own showing, he never
violated the agreement of co-partnership in any way what-
ever. He was to furnish no money and was to do no act ;
nor is the least complaint made against him ; and yet because
Griggs & Weld failed to furnish Gear with the necessary
funds as they had agreed, Harback is decreed jointly with
Griggs & Weld to pay to Gear $36,208.02 damages. If,
in truth, the business of the firm was broken up, and great
damages sustained by reason of this default of Griggs
& Weld, then was Harback entitled to a share of those
damages, instead of being compelled to contribute to their
payment. There is no intimation that Harback became
obligated to Gear, any more than Gear did to him, for the
faithful performance by Griggs & Weld of their part of the
agreement. In this respect, then, there is manifest error in
the original decree and sufficient to sustain this bill as to
Harback, at least, as a bill of review.
This bill shows that no process was ever ["served upon any
of the defendants in the original bill filed by Gear ; nor was
publication made of the pendency of the suit under the
statute ; nor were they, in any other manner,"! brought into
court, nor did they ever authorize any solicitor to enter
their appearance in that cause ; nor was their appearance
ever entered in any way in that cause, except that the
attorneys of Griggs & Weld, in their suit at law, which
DECEMBER TERM, 1845. 15
Griggs et al. v. Gear.
was enjoined by that bill, moved to dissolve that injunction,
without ever paying any farther attention to the suit. We
are not prepared to say, even if they had been specially
retained to make that motion, that that was such an appear-
ance of the defendants, as authorized the court to take
jurisdiction and proceed with the cause, without service or
notice. Let that be as it may, however, it is certain that
the attorneys who made that motion, were not retained by
the defendants to appear in that suit at all ; but so far from
it, the defendants never knew of its existence till after the
final decree was entered. It further appears, that those
attorneys are irresponsible. Can it be tolerated for a
moment, that parties are to be bound by a decree to pay
more than $36,000 which is entered up behind their backs,
and without even an implied knowledge of the existence
of the suit, and without their having any adequate remedy
over against any one ? Can it be said, that the arm of equity
is too short to reach such a flagrant case of injustice as this ?
Neither the law nor good conscience can tolerate such a
conclusion. We cannot consent to attach such a sanctity
to the character and conduct of a solicitor, that he may
bind strangers without their privity or consent in pro-
ceedings which may be utterly ruinous to them, and without
their being able to respond for the damages which they
may occasion, no matter how honest may be their motives.
If the fortunes of all our citizens are held by so frail a tenure
as this, — if they may be utterly ruined without redress,
either by the carelessness, the ignorance, or the dishonesty
of every one who may get a license to practice law in a
country where there are so many facilities for obtaining
a license as in this, it is quite time that every one should
know it. Here, we have not been in the practice of requiring
a written authority to allow a solicitor to enter the appear-
ance of defendants in chancery, and we are bound to afford
the party relief where his appearance has been entered
without authority, and where the solicitor is unable to
indemnify the party for the damages which he must sustain
by the unauthorised act, and that too whether the solicitor
act under a misapprehension of his duty, a misunderstanding
16 SUPREME COURT.
Griggs et al. v. Gear.
of his authority, or from a fraudulent intent. To the
defendant it is the same thing. To him it is no difference,
whether he is rained by the mistaken notion of one whom
he has never authorized to appear for him, or by the appear-
ance of one who desires to injure him, and does it for that
purpose alone. In the former case, there is not that moral
turpitude, which is manifest in the later, yet the mischief
in the particular case is precisely the same. In the former
case, it is a fraud in law, while in the latter it is fraud in
fact ; and in either case, especially if the solicitors be irre-
sponsible as in this case, it is sufficient ground to open the
decree and let tbe parties into a defence ; and we should be
inclined to adopt the same rule, even if the solicitors were
not insolvent, and turn the complainant in the original suit
over to the solicitor, if he had sustained damage by his unau-
thorized interference. (a)In this case, there is no pretence of
any improper motive on the part of the attorneys who en-
tered the motion to dissolve the injunction ; nor will we now
say that they transcended their duty as attorneys in the suit
at law, in making the effort to get it reviewed from the in-
junction, that they might proceed with its prosecution; but
if they did not, then they acted as attorneys in the suit at
law, and not as solicitors in the suit in chaucery. They were
employed by Griggs & Weld alone to collect a debt from
Gear of over $13,000, and not to subject Griggs, Wend and
Harback to a decree of over $36,000 against them. If the
entry of that motion was not an appearence for the defend-
ants, then the decree was manifestly wrong for want of
jurisdiction of the persons of the defendants. If it was an
appearance, then it was without authority, and, as to them
was a fraud in law, and entitles them to relief.
We have already shown that this bill is of a character
which does not require the consent of the court to bring the
suit before the bill is filed. It has been already stated that
before filing a bill of review, the party who seeks to reverse
the former decree must have performed it. As, if it be for the
delivery of the possession of land, he must have done so ; or
for the payment of money, he must have paid it. If, however
by complying with the decree he would extinguish a right,
(a)" Dana vs. Adams, 13 El. R. 694 ; Frazier vs. Rosor, 23 111. R. 89.
DECEMBER TERM, 1845. 17
Griggs et al. v. Gear.
as the execution of an acquittance, or the like ; or if the party
shows himself absolutely unable to comply with the decree,
as for instance, where he is required to pay a sum of money
and he is insolvent, he may show the facts to the court, and
get relieved from the performance before he files the bill.
In this case it does not appear that the parties have performed
the decree, nor was previous leave given to file this bill
without performance, although the complainants aver in this
bill their inability to perform ; yet, if the defendant wished
to raise that objection to the right of the complainants to file
this bill, he should have moved the court below, upon his
first appearance, to have stricken the bill from the files, or
to have dismissed the suit, and not went on and treated it as
if it were regularly filed. By demurring to it he admits that
it is properly in court, and only objects that the statements
in the bill show no ground for relief. The performance of
the decree is not necessary to the jurisdiction of the court,
but was merely a personal right, which the defendant might
have insisted upon, and which he should have urged at a
proper time. He has chosen, however, to rely upon the
insufficiency of the case as presented by the bill, and having
consented to enter upon the merits of the controversy, he
must abide the result.
A question was made, upon the argument, of the propriety
of the proceedings before the Master ; and such is one of the
errors assigned in this bill, but the propriety of his practice
is not the subject of review in this mode. Upon the report
of the Master, the court below found the existence of cer-
tain facts upon which it pronounced its decree, and we
cannot now inquire whether it decided properly in the ascer-
tainment of these facts ; but we can only see if it pronounced
the law properly upon the facts which were presented in the
complainant's bill, and thus found.
The decree of the court below, sustaining the demurrer
and dismissing the bill, must be reversed, and the cause re-
manded for further proceedings, each party to pay one half
of the costs of the appeal.
Decree reversed.
gill. — m — 2.
18 SUPREME COURT.
Harback v. Gear.
Nathaniel R. Harback, impleaded with David ft. Griggs
and Aaron D. Weld, plaintiff in error, v.. Hezekiah H.
Gear, defendant in error.
Error to Jo Daviess.
Per Curiam. This is the same case as the one just deci-
ded, of Griggs, Weld and Harback v. Gear, and the same
judgment will be entered as in that. That case was brought
up by appeal, and this is a similar case brought up by Har-
back on writ of error, he not having been a party to the
appeal.
DiGvee reversed.
Alexander M. Jenkins, appellant, v. Daniel H. Brush,
appellee.
Appeal from Jackson.
L'pon a plea of payment in an action of assumpsit, the jury rendered a verdic
for the defendant, there being mutual accounts between the parties. The
plaiutiff moved for a new trial, which motion was overruled, and was as-
si°ned for error: Held, on a review of the whole evidence, that the same
was competent, and in itself sufficient to establish the fact of payment, and
being uncontradicted, the motion for a new trial was properly overruled.
It is the privilege of a jury to take into consideration all the circumstances
disclosed in the trial of a cause, many of which rarely find their way into
the record as presented in an appellate Court, {a)
Assumpsit in the Jackson circuit, court brought by the
appellant against the appellee, and heard before the Hon.
Walter B. Scates and a jury, at the April term, 1845. Ver-
dict for the defendant for $325.60. The plaintiff moved for
a new trial, whereupon the defendant entered a remittitur of
the sum of $246.35. The court overruled the motion for a
(a) Sullivan vs. Dollins, 13 111. E. 87 ; Dufleld vs. Cross 13 Dl. E. 609, aud notes.
DECEMBER TERM, 1845. 19
Jenkins v. Brush.
new trial, and rendered a judgment in favor of the defend-
ant for $79,25.
L. Trumbull, and J. Lamborn, for the appellant.
D. J. Baker for the appellee.
The opinion of the court was delivered by
Koerner, -T.* Alexander M. Jenkins declared against
Daniel H. Brush, in the Jackson Circuit Court, at the May
term 1844, in assumpsit, the declaration containing the com-
mon money counts and two special counts, the first of which
alleges that, on the 3d day of May, 1839, the parties made
an agreement in writing, by which the defendant undertook
to collect for the plaintiff a considerable amount of notes,
accounts, and judgments, in consideration of retaining one
half of the amount collected, as a compensation, and to use
all due and proper diligence to collect the same. It further
alleges that the said defendant had not used such diligence,
whereby the plaintiff had lost the benefit of said notes, &c.
&c, and that they had become, and were entirely lost to him.
The second special count avers that defendant, in consider-
ation of receiving one half of the sums of money to be
collected by him, and promised to collect the amount of
$2,052.97, and that he had actually collected $2,000.00 there-
of, and had refused to pay the one half of said last mentioned
sum to said plaintiff.
The defendant pleaded the general issue, payment statute
of limitations, set off, and a special plea that he, defendant,
had-used due diligence, filing an account with his plea of set-
off. Issues of fact were joined, and at the April term 1845,
the case was submitted to a jury, who found a verdict for
defendant for $335.60. A new trial was moved for by plain-
tiff, for the reason that the verdict was against the evidennce,
whereupon the defendant remitted $246.35. The motion
was overruled, and judgment rendered for $79.50.
* Wilson, C. J. and Browne, J. did not sit in the case.
20 SUPREME COURT.
Jenkins v. Brush.
The decision of the court below in overruling this motion
for a new trial is the only error assigned.
The bill of exceptions, purporting to contain all the evi-
dence in the case, discloses the following state of facts :
The plaintiff produced on the trial, a list of notes, accounts
and judgment, in his favor, to which is subjoined the follow-
ing agreement :
"Brownsville, May 3, 1839.
Be it remembered that on this day, a full and complete set-
tlement has been made between A. M. Jenkins and Daniel
H. Brush, of all matters heretofore unsettled between them,
except as it relates to the above and foregoing list of notes
and accounts, judgments and so on, in favor of, and due A.
M. Jenkins, which are given to said Brush to collect ; which
said Brush agrees he will do, if he can, and when the whole or
any part of them are collected, pay one half of the amount
so collected, to said Jenkins, the other half he is to have as
compensation for his trouble of collecting.
A. M. Jenkins,
(Signed) D. H. Brush."
The plaintiff then produced several witnesses, and a jus-
tice's docket, by which he establisbel that at various times,
commencing in the year 1839, the defendant had collected
about $400.00. It appeared in the course of plaintiff's exam-
ination that a good many of the debts included in the list,
were not collectable, and also that plaintiff Jenkins had, to a
considerable extent, controlled many of the claims by giving
direction to officers, and by making his own arrangements
and settlements with the debtors. The amount so controlled,
settled or received by Jenkins, amounts to something like
$300.00.
The defendant, on his part, produced a note due him by
plaintiff, amounting, with the interest, to about $45.00 ; also
a certain paper, of which the following is a copy :
"A list of notes selected by Daniel H. Brush, April 19,
1839, to make up the balance of one thousand dollars, which
he has advanced to A. M. Jenkins. [Here follows, a list of
notes.] For value received of D. II. Brush, I hereby trans-
DECEMBER TERM, 1845. 21
Jenkins v. Brush.
fer and make over to him the within and annexed list of notes
and accounts, amounting to $343.42. May 3, 1839.
(Signed) A. M. Jenkins."
It is proper to remark here, that this assigned list of notes
and accounts contains some claims not included in the list
which contains the claims handed over to defendant, Brush,
for collection, but which the plaintiff had proved to have been
collected by Brush, and which claims so proved amount to
about $150. This of course reduces the defandant's liability
to that amount ; $250, then, was all the defendant had col-
lected on Jenkins' account of which Jenkins was intitled to
one half viz ; $125. This amount is larger than is claimed
by plaintiff's counsel, on this account, but in the calculation
which I have made of defendants liability, I have charged
him with interest from the time of his respective collections
up to the commencement of the action.
The defendant also proved a store account of about $40
against plaintiff, which it is contended here was not suffi-
ciently proved, but which, as no objection appears to have
been made below to the insufficiency of the proof must be
considered as established. He further pro red, that many of
the claims which he had undertaken to collect were worthless
and could not be collected. One of the defendant's witnesses
also testified, that some time in the winter of 1843-4, he was
shown a paper by the defendant containing a list of the notes
and accounts due plaintiff, some items of which were cred-
ited and marked as paid, and that defendant asked him to
examine the items not credited, and to give him his opinion
as to what he thought of their goodness, and that he (witness)
then thought, and gave it as his opinion, from the best of
his knowledge and information, that about $475 were then
still collectable. Defendant also introduced one Marshall?
who testified, that about a year ago he had had a conversa-
tion with plaintiff on this subject, and that plaintiff told him
that defendant had paid him over between $400 and $500 on
the demands which he had collected on the halves. That
he is under the impression that plaintiff said he had paid
over between $400 and $500, and that he does not distinctly
recollect whether plaintiff said that it was on one or two ac-
22 SUPREME COURT.
Jenkins v. Brush.
counts. That he understood plaintiff to say defendant had
remitted between $400 and $500 to plaintiff. That plaintiff
showed him a copy of the list and demands, the same as the
one in court, at the same time that he said that defendant
had so paid over, and that it was on the notes and accounts,
which defendant was to collect on halves, he understood this
payment was made. On his cross-examination, said witness
stated that he thought Jenkins told him that Brush had col-
lected that much, and that he (Jenkins) would not have
known how much defendant had collected ifa he had not
seen his books ; and said witness also stated on said exami-
nation, that this might have been the admission respecting
the payment of the $400 or $500 of which he had spoken
before, and that it was his impression that Jenkins had told
him defendant had paid over that much to him.
This is the evidence in substance, and it shows clearly
that the plaintiff was not entitled to recover on his first
special count. In order to prove it the plaintiff had to show
first, the receipts of claims by defendant, and promise to col-
lect them ; second, the neglect of collecting them ; third,
that by such neglect, plaintiff lost the benefit thereof. If he
failed to show either of these facts, the count was not sus-
tained. It is true, that on the second point, one of the
defendants own witnesses testified that some four years
perhaps, after these claims had been placed in defendant's
hands for collection, he had examined the items on the list
containing a description of said claims, and thought that
some $475.00 could be collected. But this does not suffice
to charge the defendant with neglect. He may have differed
in opinion from witness, or may have had satisfactory ren-
sons for not making an effort to collect, at that time or even
previous to it, on the point that these items, to which the
witness refers in general, without specifying any had since
become worthless ; the failure of proof is a total one. If
these notes &c, &c, were kept by defendant for an unrea-
sonably long time without exertions to collect them, the
laintiff had a right to demand them back, and upon refusal,
could have pursued the proper remedy against the defend-
ant,
DECEMBER TERM 1845. 23
Jenkins v. Brush.
Leaving the plaintiff's claim under the first count out of
view, it appears that independent of the proof of payment
as testified to by Marshall, plaintiff had shown himself
entitled to claim of defendant about $125.00, while defend-
ant had proved about $80.00 against the plaintiff, leaving a
small amount in favor of Jenkins. The jury having found
$335.00 for defendant it is manifest that they considered the
payment to defendant as proved, to the amount of near
$400.00, which, when placed to defendant's credit, nearly
makes up the sum actually found, and the question now
presents itself, were they justified in finding as they did ?
I have set out the testimony of Marshall fully. He testi-
fies to an admission of Jenkins. Without intending to im-
pugn the veracity of the witness in the slighest degree, I
am free to admit that I attach but very little weight to it.
The admission was made a year before the trial. It related
to a matter in which the witness was not concerned, and it is
hardly necessary to say, how liable we are to misapprehend
statements of others not involving our own interests. The
evidence of admissions of parties, under circumstances as this
was made, is considered by all legal writers and judges, who
have had occasion to remark upon it, as the most frail
and dangerous. The two statements said to have been made
by plaintiff in his conversation with the witness, are more-
over little reconcilable, since he could have had no reason
to complain of defendant's conduct towards him with regard
to these claims, when, in the same breath, he admitted that
he had received from $400.00 to 500.00 from him on these
claims. But we are not trying the case as a jury, and are
not at liberty to substitute our own views for theirs. The only
question for us to determine is, was their evidence sufficient
to justify the finding, and this question we must answer in the
affirmative. The evidence was competent, and in itself suf-
ficient to establish the fact of payment, and it stands un-
contradicted. Besides many circumstances may have been
disclosed on the trial in varions ways, which, though they
transpire, can rarely ever find their way into the record, as
it is presented to an appellate court, and which may have
24 SUPREME COURT.
Jenkins v. Brush.
added great weight to the testimony in question. It was the
privilege of the jury to let these circumstances enter into
their considerations. The court below, who witnessed the
trial and heard the living testimony, and had a much better op-
portunity to judge of the correctness of the verdict than we
can possibly have with a barren record before us, has thought
proper to refnse the motion for a new trial, and it would be
too much for us to say that he erred, the testimony having
been competent and sufficient to prove the fact, which the
jury have actually found to exist.
The defendant, upon a motion for a new trial having been
made, entered a remittitur, reducing his verdict to $79.25,
which is near the amount of his account against plaintiff
From this, plaintiff's counsel wish the court to draw the
inference, that the defendant himself thought that Marshall's
testimony should be disregarded. The entering of a remit-
titur by the successful party, though it has the appearance
of being his voluntary act, is often, in fact, forced upon him.
It is very probable also, that there were transactions between
the parties, which did not come to light on the trial, which,
nevertheless, made it an act of justice in defendant to remit,
although the payment was actually made by him. The par-
ties, it appears by the record, had been partners, and their
business was evidently much mixed up. Jenkins, while these
claims were in defendant's hands for collection, had managed
them himself, more or less, and thereby rendered it very
difficult for the defendant to account for all these many
items, most of which were of small amount, though rising in
the whole, upwards of $2000.00. The evidence shows
throughout a confused mass of facts and transactions ; some
relevant, others irrelevant to the issues, both parties having
evidently misapprehended their ground, as well of attack
as of defence.
If injustice has been inflicted, we cannot discover it from
the record, and must presume in favor of the verdict below,
found by a jury of the neighborhood, and chosen by the par-
ties themselves. Judgment below must be affirmed, with costs.
Judgment affirmed.
DECEMBER TERM, 1845. 25
Mason v. Richards etal.
Paris Mason, plaintiff in error, v. George M. Richards
et al., defendants in error.
Error to Jersey.
A. sold to B. a lot of land, and gave a bond for a deed on the payment of the
purchase money, for which the vendee gave a note at twelvemonths. Three
years after the note became due, it was paid, having been merged in a judg-
ment at the suit of the vendor. One year afterwards, the vendee commenced
a suit on the bond; obtained a judgment by default, and the damages were
assessed. At the term where the default was entered, Jthe vendor tendered
a deed to the attorney in the suit, which was not received. The title of the
vendor was good but the land had depreciated in value. The vendor filed a
bill in chancery to compel the acceptance of the deed and to enjoin the col-
lection of the judgment, but did_ not bring the bill into court, nor was a
copy filed therewith as an exhibit. At the hearing, the injunction previously
granted by the Master, was dissolved, and the bi'l dismissed : Held, that, by
obtaining and collecting the judgment against the vendee, and by not appear-
ing and defending the suit on the bond, and by permitting a year to elapse
after receiving the purchase money from the vendee before tendering a deed,
he had made his election, and considered the contract of sale as still subsist-
ing, and, under all the circumstances, must abide the judgment against him :
Held, also, that he should have brought his deed into court to be placed with-
in its control and made subject to its order, to have entitled himself to the re-
lief prayed.
Bill in Chancery for an injunction, &c, in the Jersey
Circuit Court, filed by the plaintiff in error against the de-
fendants in error, and heard before the Hon. Samuel D.
Lockwood, at the May term 1845, when the injunction,
previously granted, was dissolved and the bill dismissed.
The substance of the bill is set forth in the opinion of the
court.
The defendants in error not] appearing in this court, a de-
fault for non-joinder in error was entered against them, and
the cause argued ex parte by
W. Thomas, for the plaintiff in error.
The plaintiff in error assumes the following positions, as
applicable to the facts of the case :
1. One of the most frequent occasions on which courts of
equity are asked to decree specific performance of con-
26 SUPREME COURT.
Mason v. Richards et al.
tracts, is when the terms for the performance and completion
of the contract have not, in point of time, been strictly com-
plied with. 2 Story's Eq. Jur. 85.
2. Courts have been in the habit of relieving where the
party, from his own neglect, had suffered a lapse of time, oj
from other circumstances, could not maintain an action a*
law. Ibid. 82-4, note 84.
3. Courts of equity frequently decree specific perform-
ance, when the action at law has been lost by the default of
^he party seeking specific performance. Ibid.
4. If there has not been gross negligence, and it is consci-
entious that the agreement be performed, Courts of equity
will interfere. Ibid.
5. Time is not generally deemed, in equity, to be of the
essence of the contract, unless the parties have so expressly
treated it, or it necssarily follows from the nature and cir-
cumstances of the contract. Ibid. 87.
6. Courts of equity will relieve the party vendor by de-
creeing a specific performance, where he has been unable to
comply with the contract, according to the terms of it, from
the state of his title at the time, if he comes within a rea-
sonable time, and the defect has been cured. Ibid.
7. Where delay in the performance is occasioned by the
act of the vendee, and property has been injured by use,
vendee shall be compelled to accept of deed, notwithstanding
there has been a judgment upon the bond for breach in not
conveying. Cook v. Hendricks, 4 Monroe, 500.
8. Where vendee remains in possession, sustains no ma-
terial injury, impairs the value of property, or, from the
state of the title, the vendor is unable to convey, courts will
grant relief. Doss v. Cooper, 2 J. J, Marsh. 412.
9. Cases are numerous in which specific execution will be
decreed in favor of vendor ; as where vendee is in possession,
and vendor, without any positive fault, has omitted, or, on
account of the state of the title, has been unable to comply.
Craig v. Martin, 3 do. 54.
10. Upon the question as to time, &c, see Garnett v.
Macon, 6 Call, 370 ; Brashear v. Gratz, 6 Wheat. 578 ;
DECEMBER TERM, 1845. 27
Mason v. Richards et al.
Waters v. Travis, 9 Johns. 466 ; Moore v. Smedbury, 8
Paige, 607.
In view of the law and facts of the case, the complainant
is entitled to relief,
1. Because the contract does not show that the parties
intended that time should be considered as of the essence of
the contract ; and
2. Because the parties have not treated the contract as
one in the completion of which time was regarded as of any
importance.
3. The vendees were in default upwards of four years.
4. The vendees, by their conduct, have waived all right
to insist upon strict performance.
5. The vendees, by not asking for deed, nor prosecuting
the bond for deed, acquiesce in the delay of its execution.
6. No injury has resulted to vendees from the default of
vendor, and the facts of the case show that they were con-
senting to the delay.
7. The facts show that the judgment is for twice as much
as the lot was worth, when it was paid for, or when the last
payment was made.
8. The judgment was for the value of the lot "at the time
when the purchase money was payable, and deeds should
have been executed ; whereas, according to the law as well
as justice of the case, the judgment should have been for
the value of the lot when the last payment was made. The
judgment, therefore, is for a penalty.
The opinion of the court was delivered by
Caton, J.* In May, 1836, the defendants purchased of
the complainant a lot in the town of Grafton, for ,$543.50,
for which they gave their note at twelve months, and the
complainant gave a bond to execute a deed on the payment
of the purchase money. The complainant obtained judg-
ment on that note, which was finally satisfied by the defend-
ants in 1840.
* Wilson, C. J., did not sit in this case.
28 SUPREME COURT.
Mason v. Richards et al.
The defendants commenced a suit on their bond for a deed
in 1841, and obtained a judgment by default, in 1842, and
their damages were assessed at $500.00, and final judgment
entered in April, 1842. At the term when the default was
taken, the complainant tendered a sufficient deed to the at-
torney of the defendants, who declined accepting the same.
The complainant made no defence to the suit on the bond.
The case further shows that, at the time of the sale of the
lot, and ever since, the complainant had a good title, and
that neither party has been in the actual possession of the
lot, or made any improvement thereon, or done any thing to
depreciate its value. The lot has however, much depreci-
ated in value since the sale, owing to the general decline in
town property. The lot was sold at its fair value, at that
time, as other lots were selling. The complainant has been,
and now is ready and willing- to make a good title. The de-
fendants never demanded a deed, nor did the complainant
ever tender one, except as above stated. The above facts
appear from the pleadings and an agreed statement of facts.
This bill was filed on the 10th day of May, 1842, and prays
that the defendants may be decreed to accept a deed of the
lot, and for a perpetual injunction against the collection of
the judgment obtained on the bond. It does not appear that
the complainant brought into court a deed with his bill.
At the May term, 1845, a decree was entered, dismissing the
bill and dissolving the injunction which had been previously
granted by the Master. The complainant has brought the
case here by appeal for the purpose of reversing that decree.
Although the defendants neglected to pay the purchase
money at the time stipulated, yet by prosecuting them at
law, and. receiving the amount afterwards, the complainant
chose to consider the contract of sale as still subsisting in-
s ead of repudiating it, as he, perhaps had a right to do,
after the default on the part of the purchaser. On the re-
ceipt of the purchase money, the complainant was as much
bound to make a deed as if it had been paid when due, even
without demand, and failing to do so, he became immedi-
ately liable to a prosecution on his bond. By compelling
DECEMBER TERM, 1845. 29
Mason v. Richards et al.
payment after the day, he -waived any advantage which he
might have had for the want of punctuality on the part of the
purchasers. He could not receive the purchase money and
still insist that the purchasers had no legal remedy against
him on his bond. He was under the same liability that he
would have been had they paid at the day, and failing to
make a deed, became liable to an action on the bond. He
was accordingly prosecuted, and allowed judgment to go
against him by default. He now seeks to deprive the de-
fendants of the fruits of that judgment, without showing that
he had any legal defence to that suit, and without showing
any pretence of an excuse why he did not apply to a court
of chancery for leave to perform his agreement specifically,
if the circumstances of the case would have authorized him
to do so, before that agreement became merged in the judg-
ment. By that judgment the bond became extinct, and the
agreement between the parties was at an end. (<z) It is not the
specific performance of an agreement alone that he now
seeks, but he calls upon the court first to resuscitate an
agreement which has ceased to exist, and then enforce its
specific execution. The agreement on the part of the com-
plainant to make, and of the defendants to recieve a deed,
was destroyed by the act of the defendants and the acqui-
escence of the complainant, and it is asking too much of the
court to make an agreement for the parties, and then compel
them to abide by and perform it. Had there existed any
equitable circumstances which would have induced a court
of chancery to have excused him for neglecting to make
the deed for a year after he had received the purchase mon-
ey, and become bound to make it, he should not have slept
with supine indifference upon ^his rights, while he saw his
adversaries prosecuting their legal claim, but should have
applied to the court without delay, and while the contract
was yet in existence, and enjoined them from proceeding to
judgment, and compelled them to have accepted a deed.
He received the last payment in the fall of 1840, and neg-
lected for a whole year to tender his deed, before he was
sued for that default, and then made no attempt to place
himself right, by performance, from the commencement of
(a) Harrington vs. Hubbard, 1 Scam. R. 573.
30 SUPREME COURT.
Mason v. Richards et al.
the suit in October, 1841 till April, 1842, when judgment
was obtained against him without objection. And even then,
he contented himself with tendering a deed to the attorney,
who was employed to prosecute that suit without going near
the defendants at all ; without making any excuse for his
continued neglect ; without making any, even the most for-
mal objection to the judgment, and without making any
application to the court for relief. If parties will not attend
to their own business, they ought not to call upon the court
to relieve them from the consequences of their own negli-
gence, and especially in this most extraordinary way. Here
was no misfortune, no unforeseen accident, no surprise, no
circumstance beyond the control of the party, no fraud on the
part of the defendants, and indeed no excuse of, any sorte
shown, why that suit was allowed to proceed to judgment
without objection, which can authorize >the court to inter-
fere and do for the party what he neglected to do for himself.
If time was not of the essence of the contract, as has been
insisted, we think it is of the judgment, at least. The party
cannot be allowed to stand by till he sees what judgment the
party can get against him on his bond, and then take his
choice, either to convey the land or pay the judgment, as he
shall find most to his interest. He cannot be allowed to
speculate upon the rights of: his adversary in that way. He
has made his election to let judgment go against him with*
out objection, and he must now abide by it.
I will not set a limit to the powers of a court of equity
by saying that circumstances might not exist which would
authorize it to interfere, and grant the kind of relief which
is sought by this bill. Indeed, we have been referred to a
case where, under extraordinary circumstances, similar re-
lief seems to have been granted ; but a short examination of
the circumstances of that case will show that it can be of
but little avail to the complainant here. It is the case of
Cook's Adm'r v. Hendricks, 4 Monroe, 500. There, Cook
have covenanted to convey to B. Hendricks an acre of land
in six weeks, who immediately took possession, and used it
for a brick yard for a year and a half, when he conveyed it to
his son R. H., who continued the possession, digging and
DECEMBER TERM 1845. 31
Mason v. Richards et al.
moulding brick on it. Nearly a year after that, R. H. re-
ceived an order, furnished him by Cook, upon the persons
who held the legal title, to convey it to him, on which he
might have got the title, but which he never presented. R.
H., to whom the covenant had been assigned, commenced a
suit at law thereon, without having offered to return the
order for a deed, without having been disturded in his pos-
session, and after having greatly injured ' the lot by digging
the earth and making brick thereof. Cook obtained title in
himself, and tendered a deed to R. H. before a verdict at
law. He refused to accept \he title, and went on to assess
the damages by default. Very promptly thereafter, Cook
exhibited the bill and deed, as before tendered, and prayed
for relief, which the Court granted. It would be a waste of
time to point out the difference between the circumstances
of that case and this. Besides, it does not appear that any
final judgment was ever entered in the cause. It only ap-
pears that the damages were assessed on the judgment by
default. But, admitting all that supposition, even, can claim
for it, still it but establishes the power of the court to grant
such relief under very extraordinary circumstances. None
such exist in the case before us.
It was decided by the same court, in the case of Oldam
v. Woods, 3 Monroe, 48, that where a party has neglected
to make a conveyarce of land according to his agreement,
and judgment has been obtained at law on the agreement, he
cannot get relief in equity, except under very extraordinary
circumstances, sufficient 'to form an exception to the general
rule. The same principle had been before established by
the same court in the case of Edwards v. Handley, Hardin,
602. Afterwards, however, in the same court, in the case
of Woodson's Adm'r v. Scott, a strong doubt seems to have
been thrown over the whole doctrine, although the question
was not expressly decided. As before stated, we will not
say that the court may not have power to grant such relief
under some circumstances ; but, at least, it should be very
sparingly exercised, even under strong circumstances, of
which there is an entire absence in this case.
32 SUPREME COURT.
Longwith et al. v. Butler.
There is another fatal objection to the relief prayer for in
this case, and that is, that the complainant has not brought
the deed into court with his bill which should always be
done. It is necessary in the first place, that the court may
see that it is such a deed as the party would have a right to
demand ; and again, that it may be within the immediate
control of the court, to be delivered over to the defend-
ants, that they might have no further trouble in getting it
should their judgment be enjoined. Here, no exhibit ig
made even of a copy of: the deed which is said to have^ been
tendered to the attorney of the defendants in the suit at
law, and whose business it was, I may remark, to obtain
a judgment, and not a deed.
The decree of the court below was proper, and is affirmed
with costs.
Decree affirmed.
Thomas Longwith et al., plaintiffs in error, v. Thomas T.
Butler, defendant in error.
Error to Scott.
At Common Law, a mortgage vested the legal estate in the mortgagee, liable to
be defeated upon the performance of the condition. After default, the le-
gal estate became absolute, but the parties might mitigate the rigor of the
rule, by stipulating that the mortgagee, after default, might sell, so as to
evolve the real value of the land, and have the debt satisfied and no more.
Such a power was a common law power, an appointment, and considering
the legal estate all the time in the mortgagee, it may be called a power ap-
pendant or annexed to the estate.
A mortgagee under a mortgage containing a clause to sell, may sell the mort-
gaged premises and convey a good title to the purchaser.
The rule is well established, that every thing done by the parties to a sale cal-
culated to prevent competition, renders such sale void.
Sales of land by the mortgagee, or trustee, under a power to sell, contained in
the mortgage, or deed of trust, being much liable to abuse, will be most
jealously watehed by Courts of Equity, and, upon the slightest proof of un-
fair conduct, or of a departure from the power, they will instantly be set
aside.
Bill in Chancery for relief, &c, in the Scott Circuit
Court, filed by the defendant in error against the plaintiffs in.
error. The cause was heard before the Hon. Samuel D.
DECEMBER TERM, 1845. 33
Longswith et al. v. Butler.
Lockwood, at the October term, 1845, -when a decree was
entered in favor of the complainant below.
The allegations of the bill and the answers, the depositions
of the witnesses, and the decree are substantially set forth
in the opinion of court.
The cause was submitted in this court upon the written
arguments of counsel.
J. J. Hardin & D. A. Smith, for the plaintiffs in error.
M. McConnell, for the defendant in error.
The opinion of the court was delivered by
Koerner, J. Butler, complainant below, filed a bill in
chancery in the Scott circuit court against the appellants,
setting forth in substance, that on the 24th day of September,
1841, the said Butler and wife executed a mortgage to Gilham,
M'Dow, Hitt and Cline, four of the defendants, on certain
tracts of land, to secure the said mortgagees in their liability
as his securities, for the payment of a certain sum of monev,
a part of which was owing to one Morgan, and another to
the Bank of Illinois. The mortgage contained a clause, that
in case of Butler's failure to pay the said sums of money when
due, the said mortgagees might sell from time to time, and
on certain terms, so much of the real estate mortgaged, as
should be necessary to raise the amount due upon said claims
against Butler, at public auction, and might execute deeds
of conveyance, with covenants of warranty to purchaser
and that said mortgagees might proceed by such sale or sales
to reimburse themselves for all losses sustained by them, by
the non-performance of the condition of the mortgage men-
tioned. The bill further avers that Butler made default
in paying said debts, and that said mortgagees, being called
on for payment, immediately sought to raise the money by
sale, and did on the 26th day of Nov., 1842, without an ap-
plication to a court, and in violation of law, actually sell
said land. That about this time, Butler's indebtedness to
Morgan amounted to $865.00, and his indebtedness to the
gill. — in — 3
34 SUPREME COURT.
Long with et al. v. Butler.
Bank of Illinois nominally to $1,784.00, though owing to the
depreciation of the paper of said Bank, it might have been
discharged with about $600.00 in good money ; that in sell-
ing said land, they did also fail to pursue the power granted
to them, and grossly departed therefrom ; that at the said
sale, Thomas Longwith, one of defendants, purchased a large
tract of the lands mortgaged, for $1,515.00; a pari of which
however, he bought for the benefit of the defendants Wil
liam Sharoon and John Morrison, according to a secret
understanding with said last named defendants. That the
mortgagees immediatelv executed an absolute deed to said
Longwith, and put him in possession, and that Longwith exe~
cuted deeds to Sharoon and Morrison for their respective
shares of the purchase, and put them in possession. That
one Martin Funk, another of the defendants, at the said
sale, bought another tract of said mortgaged land, and ob-
tained a deed and possession from the mortgagees ; that
M'Dow, one of the mortgagees, became the purchaser of two
other tracts of land, and that all these tracts of land were
sold greatly below their value, and for and inadequate price.
The bill charges that the mortgagees and the purchasers had
conspired to sacrifice said land by various fraudulent de-
vices, as well in the manner of the sale, as by preventing fair
competition, and states the facts in detail, supporting this al-
legation. Many other facts and transactions are set out on
the bill, which it is unnecessary to state here, as they, under
the view which the court has taken of the case, can have no
bearing upon its decision.
The bill waives the oaths of all the defendants, except as
to Martin Funk, and prays to set aside all these sales as ut-
terly void, and that an account be taken of the rents and
profits. Complainant alleges that he does not know how
much these mortgagees have actually paid for him, or in fact,
that they have paid any thing, as they have not surrendered
to him the evidences of his indebtedness, and he offers to pay
the full amount of money actually paid by them, and legal
interest, whenever that amount is fairly ascertained by the
aking of an account, and also asks for general relief .
DECEMBER TERM, 1845. 35
Long with et al. v. Butler.
The answer of the defendants, while it admits the indebt-
edness of complainant, the execution of the mortgage for the
purposes mentioned in the bill, their sale of said lands with-
out application to a court of chancery, the making of deeds
to purchasers, denies that they sold without authority of law,
or that they departed from the terms of sale, as provided for
in the mortgage, in the slightest degree. It denies that they
acted unfairly and fraudulently in the premises in any man-
ner whatever. They insist in their answer, that Elinois bank
paper was not so much depreciated as complainant alleges,
and render an account of payments made by them, and for
expenses, &c, by which they make it appear that the pro-
ceeds of said sale were no more than sufficient to reimburse
them, and, in fact, left complainant in their debt to a small
amount. The purchasers all insist that they are bona fide
purchasers, and as such ask the protection of the court
in the premises. To this answer there was a replication, and
numerous depositions were taken by the complainant.
At the October term 1845, the court rendered a decree
which, by agreement of parties, is to be considered made
pro forma, setting aside and annulling all the said sales, and
directing the purchaser to deliver possession of all said lands
to complainant within forty days after service of copy of the
decree ; that the Master in Chancery take an account of the
rent and profits of said lands, and also of permanent im-
provements made thereon by the purchasers, (except as to
the lands sold to Robert McDow, ) from the day of their
taking possession until surrendered, Also, that the said
Master take an account of what is due on said mortgage,
and of what mortgagees have paid for said complainant, and
in what funds, and their value.
By agreement of parties, appearing on the record, this
decree is considered final in the court below as to the rights
of the parties under said sale, and so far final in all other re-
spects as to enable the parties to take an appeal ; and it is also
agreed that this court shall render such decree in this case,
if the court shall be of opinion that said decree is in any
way defective, as the circuit court ought to have rendered.
SUPREME COURT.
Lonarwith et al. v. Butler.
The defendants assign for error that said decree is erro-
neous in euery particular, and that the bill ought to have
been dismissed for want of proof.
The first question presented by the record, as to the mort-
gagegee's right to sell under a power of sale, without the aid
of a Court of Chancery, is one of considerable importance,
and about which much diversity of opinion prevails amongst
the profession in our State. For this reason, it becomes
necessary to examine it with care, and to give it due delib-
eration. At common law, a mortgage vested the legal estate
in the mortgagee, liable to be defeated upon performance of
the condition. After default, the legal estate became abso-
lute. There is no question that, by the consent of both the
mortgagor and mortgagee, the harshness of this rule might
be mitigated. The parties were at liberty to prevent the
absolute foreclosure, by stipulating that the mortgagee, after
default, might sell, so as to evolve the real value of the land
and have the debt satisfied, and no more. Such a power was
a common law power, an appointment, and considering the
legal estate all the time in the mortgagee, it may be called a
power appendant or annexed to the estate. 2 Cowen, 236.
It seems clear, then that the power in question would have
been a valid one at common law.
Equity has, however, obtained jurisdiction over the subject
of mortgages, and has, in a spirit of humanity and justice,
essentially modified the common law principles, and, as some
eminent writers have said, has achieved a noble triumph over
technical rules. 4 Kent, 158 ; 2 Story, § 1014. It will be
cenceded by all, who have any knowledge of the Roman
law, that the equitable doctrines now universally prevailing
in regard to mortgages, have been derived from that source.
The civil law, in this as in many other instances, has been
the great armory from which the Courts of equity in Eng-
land have supplied themselves with the most efficient weapons
to ward ofi the severities of the stern and unrelenting com-
mon law.
Should we, therefore, be able to ascertain what the
rights of the mortgagee were, as is established by the civil
DECEMBER TERM, 1845. 37
Long with et al. v. Butler.
law, we will not find it difficult to satisfy ourselves what they
were under the rules of Equity as laid down by the English
courts.
Default of payment at the stipulated time worked no for-
feiture of the mortgage or pledge by the civil law ; but the
creditor obtained a right to reimburse himself by sale, and
ordinarily he might sell without any judicial sanction, after
giving proper notice to the debtor of his intention, whether the
authority to sell were expressly given to him or not. 2 Story's
Eq. §1009, and the numerous authorities there cited. In
fact, courts were generally applied to in such cases only
where the sale of the mortgaged estate or personal property
could not be effected, for the purpose of obtaining a decreta
order to vest the property absolutely in the mortgagee. 2
Story's Eq. §1024. That an authority to sell after default gave
to the mortgagee complete power to sell, is a principle of
the civil law which has never been disputed, and there is n°
reason to believe that the English courts of Equity should have
refused to adopt it, while they received the whole equitable
doctrine on mortgages without essential modification, par-
ticularly when we reflect that it adapted itself so well to the
common law principles of power and appointments.
The question has been hitherto considered independant of
authorities, and merely with reference to general principles ;
let us now discuss it as it presents itself by adjudicated cases
and the observations of approved legal writers.
Mr. Powell, in his treatise on mortgages, vol. 1, page 10?
seems to intimate a doubt with regard to the validity of such
powers, on the authority of a decision in Croft v. Powell
Corny. 603. But the third volume of his work containing
precedents of mortgages, he gives a form of one containing
such a power, and his commentator, Mr. Coventry, himself
the author of a work on mortgage precedents, remarks, in a
note, that the case of Croft v. Powell does not support the
doubt expressed in the text. Chancellor Kent also reviews
this case, and thinks it rather an authority in favor of the
validity of such powers. 4 Kent 146, note c. Coventry
38 SUPREME COURT.
Longwith et a I. v. Butler.
considers the point as settled, and relies on 18 Vesey, 344 ;
1 Barn. & Cress. 364. Lord Eldon, in a comparatively late
case, Robert v. Boson, ch. R. 1825, expressed some doubt
in regard to the question, but it appears that he answered the
question, which he then made, very satisfactorily himself*
He says, in that case: "Here the mortgagee is himself made
the trustee. It would have been more prudent for him not
to have taken upon himself that character. But it is too
much to say, that if one party has so much confidence in
the other as to accede to such an arrangement, this court is,
for that reason, to impeach the transaction." See 6 Madd.
ch. R. 15 ; 2 Sim. & Stu. 323.
The legislature of New York, as early os 1788, passed a
law regulating sales made by mortgagees under such powers,
upon the supposition that they were recognized as valid, and
the courts there have ever since considered such powers as
perfectly proper. In an important case in the court of Er.
rors in New York, Wilson v. Troup, 2 Cowen, 227, Wood,
worth, Justice, remarked, that the insertion of the clause to
sell does not confer on the mortgagee a greater security than
is intended in a simple mortgage. It applies solely to the
remedy, and does not impair any right of the mortgagor.
Chief Justice Savage, in speaking of the Statute of New
York, observes, that it supposed such a power, and only
undertook to gaurd its exercise properly. Other authorities,
sustaining the power to sell, are to be found in 1 Caines'
Cases, E. 1, 4 Johns, ch. R. 37 ; 7 do. 45.
In Kentucky, the court, on one occasion, waived the de-
cision of the question, 3 Littell, 404 ; on another, leaves a
strong inference to be drawn that such a power is valid, and
may be executed by the mortgagee according to the stipula-
tion. 7 Monroe, 587. Justice Story, in his treatise on
Equity, vol. 2, § 1027, decides in favor of the validity of such
powers, and concludes his remarks upon the point by saying :
"And, although Lord Eldon at first intimated an opinion
unfavorable to such power, as dangerous, it is now firmly
established." Chancellor Kent, (4 Kent's Com. 146,] lays
DECEMBER TERM, 1845. 39
1 . _#. —
Longwith et al. v. Butler.
down the same doctrine very positively, upon a review of
many authorities, and seems to leave no doubt upon the point.
In the case of Bronson v. Kinzie, 1 Howard 321, the Su-
preme court of the United States had a mortgage similar to
the present one under consideration, and the observations of
the court shows clearly that no doubt^was entertained as to
tie validity of such an instrument. Chief Justice Taney
say£ page 327, ) "At the time this deed was executed, the
rigl to sell free and discharged of the equitable estate of,
tht mortgagor existed in the State ( Illinois ) without the aid
of he express covenant that the mortgagee might \ sell, and
th only difference between the right annexed by law and
that given by the covenant, consists in this, that in the former
case the right of sale must be exercised under the direction
of the court of chancery, upon such terms as it shall pre-
scribe, and the sale made by an agent of the court ; in the
latter, the sale is to be made by the party himself. But even
under this covenant, the sale made by the party is so far
subject to the supervision of the court, that it will be set
aside, and a new one ordered, if reasonable notice is not
given, or the proceedings be regarded in any respect as con-
trary to equity and justice.
This court is satisfied, from an examination of the general
principles applicable to the point in question, as also from
these weighty au thorites, none being produced to show that
any court has decided to the contrary, that a mortgagee
under a mortgage containing a clause to sell, may sell the
mortgaged premises and convey a good title to the purchaser ,
though it must be admitted that legislative enactments pre-
scribing uniform and proper regulations in the manner and
mode of such sales, with a view to protect the interests of
embarrassed debtors, would be extremely salutary, as well
in cases of mortgages as deeds of trust.
It is insisted by the complainant's counsel, that this mort-
gage having been executed since the Act of our legislature,
passed Feb. 19, 1841, in regard to judgments and executions,
more generally known under the title of stay or property
40 SUPREME COURT.
Longwith et al. v. Butler.
law, in which it is provided that the mortgagor, or his judg-
ment creditors, shall have the right of redemption for twelve
and fifteen months respectively, after the sale of the mort-
gaged premises, in all cases, whether they have been sold
under an execution or under a decree in chancery. The
mortgagees in this case had no right to sell absolutely, so as
to evade the operation of this law. Without deciding whether
the language of this law would include sales made under a
power to sell, or is confined to judicial sales it is deemed a
sufficient answer to this proposition to say, that this bill is
not filed by the complainant, or any of his judgment creditors,
for the purpose of redeeming the said lands, and that if they
were seeking relief for that purpose, they have suffered the
time to expire within which, according to the construction
which complainant puts upon the said law, he or they were
entitled to redeem. The bill prays to annul the sales, as
having been made without authority and in fraud, while a
bill to redeem would necessarily have to admit the validity
of the transaction.
Having disposed of this branch of the case, the next
question which arises is one in relation to the actual fraud
charged to have been committed by all the defendants.
The testimony is very voluminous, and cannot be set
out in detail without swelling this opinion beyond all
reasonable length. Substantially it amounts to this ; that
defendant Longwith, the principal purchaser, offered to one
Richard S. Walker, who had an intention of bidding for
the land, $200.00 if he would not bid ; that shortly before
the sale, however, he expressed an indifference as to Walker's
bidding or not bidding. That Walker did not attend the
sale, pricipally for want of funds, and that the promise of
Longwith did not influence him in his course. That one
Marshall Smith was present at the sale, that he had a claim
on complainant, Butler, and was#anxious that the land should
sell for enough to. pay this debt also, and that he com-
municated his intention to Longwith ; that Longwith then
promised to pay said debt in the presence of the mortgagess,
DECEMBER TERM, 1845. 41
Longwith et al. v. Butler.
if he and defendants Sharoon and Morrison would not bid.
That% said Marshall Smith was desirous to bid himself, and
engaged in getting others to bid, but desisted after Long-
with's promise. Said Smith states in his deposition, that
he would not have been able to pay all if he had bid, bu^
that his principal object was to get one Stephenson to bid,
and that after Longwith had promised to pay the debt, he
took no further interest in the matter. He states, also, that
Longwith told him that he had offered Walker $200.00 not
to attend the sale, and that he does not know, that Longwith
knew he had not the money to pay for said land. John B.
Campbell testifies, that such an arrangement was made be-
tween Longwith and M. Smith, as stated by Smith, in the
presence of the mortgagees. Smith was not to bid for the
land, and Longwith, on his part, agreed to pay the debt
Butler owed Smith. Fleming Stephenson swears, that he
attended the sale for the purpose of bidding for complainant's
benefit ; that he was told before the sale, that the price
would have to be paid down, and in good money, and that
he declined bidding when he heard the sale was on these
terms. That Longwith offered him $150.00 not to bid for
said land, and that witness accepted said offer. He is not
quite certain, whether this offer was accepted by him before
or after he had understood that the money had to be good
money. It is proper to remark here as applicable to the
foregoing testimony, that all the persons to whom offers
were made by Longwith, when interrogated by defendant,
deny that they acted under the influence of said propositions,
and assert that they had no corrupt motives. Martin Funk's
case is next to be considered. His answer is sworn to, and
by it, it appears, that previous to the sale, he made an
agreement with the mortgagees to buy on certain terms, by
which, amongst other arrangements, the mortgagee Hitt was
to settle his own note due said Funk, on terms which could
not have been but very advantageous to said Hitt. It was
also agreed, that at the sale, his (Funk's) bid might be cried
at $200.00, though in fact it is admitted by defendants, that
42 SUPREME COURT.
Longwith et aft. v. Butler.
he paid $300.00, in good money. It is also proved that Funk
made no bid at the sale, but that the land he purchased, was
struck off for $200.00 by Hitt, who acted as crier, nobody
bidding, but that the land was afterwards put down to Funk.
It is also shown by the testimony of Wm. Coltis, that he
(Coltis) attended the sale, and intended to bid for the land
afterwards purchased by Funk, for the purpose of getting
stock water, of which purpose he apprised said Funk ; that
Funk then told him not to bid, and that he would, in case
he became the purchaser, give him the right of way over
the land to the water. Witness then declined bidding, but
also states in his deposition, that he made no fraudulent and
corrupt bargain with said Funk, in consequence of which
he desisted from bidding. The evidence clearly establishes
the following other points, which are deemed material ; that
Sharoon and Morrison had previously arranged with Long-
with, that he should purchase for them- ; that in fact Longwith
had no money at all of his own at the time of sale, but
made the first part payment with the money Sharoon paid
him the next day after the sale, for the portion of the
land he purchased : that the balance was paid from time to
time, and the last instalment some seven months after the
sale ; that Morrison did not pay cash down, but gave his
note, so that in fact the sale was no cash sale, but one partly
on credit, contrary to the terms of the sale as made public
on the day of sale ; that Morrison agreed to pay a share of
the money which Longwith had promised to pay Butler for
not biddiug.
From the facts, as thus proven by the concurrent testimo-
ny of several witnesses, the court is clearly of opinion that
the said sales from the mortgagees to Thomas Longwith and
Martin Funk, as also the subsequent sales from said Longwith
to Sharoon and Morrison were null and void. The rule is well
established, that every thing done by the parties to a sale cal-
culated to prevent competition, renders such sale void. The
court refrains from citing authorities in support of a princi-
ple so plain and palpable. The counsel for defendants them-
DECEMBER TERM, 1845. 43
Longwitli et si. v. Butler.
selves, do not seem to deny the rule, but they insist that the
principle can have no application to the present case, be-
cause, as they contend, the complainant has not proved that
the persons whom the purchaser induced not to bid for the
land, were actually influenced in their actions by the induce-
ments so held out to them, and they ask, "how, on the true
and just principles of mental or legal science, it could be
properly said that any person was prevented from bidding for
the lands, who never intended or deliberately proposed to
bid for them." From the whole tenor of Marshall Smith's
testimony, it is manifest that he desisted from bidding or get-
ting others to bid because one of the purchasers had promised
to pay him a debt, which he wanted to secure by bidding
more for the land than would satisfy the mortgage. In fact,
he expressly says so. But even without his testimony, will
a court of chancery satisfy its conscience by such reason-
ing? It is sufficient to taint this transaction and avoid its
effects, that the purchasers here have sown the seeds of evil.
It is not for them to say that they have not taken root and
borne their legitimate fruit. It is quite natural that the wit-
nesses, when pressed by defendant's counsel, should deny
that they acted corruptly, or from sordid motives. We must
look at their acts, however, and not at their explanations.
We cannot be content, upon the principles of "mental sci-
ence," to take these persons as the true and proper expo-
nents of their own deeds or motives. Human action hardly
ever springs from one cause alone, but most generally from
a combination of causes. But few men can trace their
actions with certainty, to a preponderating motive. At the
time they act, they have often become unconscious of many
of the influences which indeed produced the result, and it is
but too common for human nature to beguile itself into the
belief that the motive which produced the act, was proper
and unobjectionable, and that other less innocent causes,
though they presented them, exercised no influence, (<z)
The buying off of bidders, however, is not the only act of
fraud and unfair dealing imputed to and proved upon the de-
Co) Greenup vs . Stoker, 18 J11 R. 27, and note.
44 SUPBEME COURT.
Lougwith et al. v. Butler.
fendants. The parties to this sale held out the idea that the
sales were to be made for cash in hand and good money, while
they had arranged it amongst themselves, that the purcha-
sers might buy to the greater extent on credit. Nothing con-
sidering the times and the circumstances attending the whole
transaction, as disclosed by the evidence, could have had
a more powerful effect to deter bidders. '";.. This holding out of
false colors as to the terms of the sale, of itself establishes the
complainant's cause, and calls loudly for redress at our hands.
In this case it becomes our most imperative duty to give
full scope to the remedial powers of equity. It is admitted
by all courts that these sales, made by the trustee himself,
under the power bestowed upon him by an over-confiding
debtor, are much liable to abuse, and ought to be most jeal-
ously watched by chancery courts. Upon the slightest proof
of fraud or unfair conduct, or of a departure from the power,
they will be instantly set aside.
The mortgagees here were cognizant of many of these im-
proper transcations, and one of them, Hitt, actually partici-
pated for his own advantage in them. The subsequent pur-
chasers, Sharoon and Morrison, acquiesced in what was
done by the others, and appear to have had full knowledge
of the various J schemes and devices resorted to to oppress
complainant, and to drive him and his family from house and
home. Longwith was their ^agent in buying the land, and his
purchase was theirs. If he used fraud it must attach to them.
By an agreement of parties in the record, the question as
to McDow's purchase is withdrawn from the consideration
of the court. This relieves us from a discussion and deci-
sion of the point, whether he could, under any circumstances,
being one of the mortgagees and trustees, have bought any
of the land. The view which the court has taken of this
case also relieves it from the consideration of numerous other
points of much interest, raised by counsel in their written ar-
guments, such for instance, as whether Butler was entitled to
a formal notice of the sale, having had actual notice, whether
the mortgagees could sell before they had first paid the debts
DECEMBER TERM, 1845. 45
Longwith et al. v. Butler.
for which they were liable as securities, and whether under the
power, they could sell all the land, or only so much as was ne-
cessary to raise a sufficient amount to renew the notes in bank*
The counsel for defendants, lastly insist that the decree be-
low must be reversed, and the bill dismissed, because the
complainant has failed to deposit the money actually paid by
the mortgagees for his use, and the legal interest. As a gen-
eral rule, he who seeks equity must do equity, and if a re-
scision of a contract is insisted on, the money received under
it should be brought into court. But the peculiar circum-
stances of this case seems to take it out of the general rule.
The complainant alleges that he never was informed of the
real amount actually paid, and was never placed in posses-
sion of the notes and bills of exchange taken up by the
mortgagees. It appears that some of these bills and notes
were filed with the papers, by defendants, upon the hearing
of the case, or perhaps with their answers, thus showing that
his allegation, as to the evidences o£ indebtedness not having
been surendered, was true. Besides, it was a matter of
much uncertainty how much real monev it took at the time
to pay the bank money as the value of the notes and certifi-
cates of the Bank of Illinos was very fluctuating. The com-
plainant is also entitled to the rents and profits, while the
purchasers may have a counter demand for permanent im-
provements. From the nature of the case, it was impossible
to anticipate what the precise amount would be, which was
actually due from complainant to defendants.
As the decree is only final to a certain extent, to which
by the express consent of the parties, we have considered it
as final, and as further action has to be taken, we deem it
proper to direct a modification of the decree made below,
calculated to better secure the rights of the defendants.
The deeds should not be ordered to be set aside and can-
celled, but the Master should be directed to take an account,
as ordered in the decree, and to report, and if it appear
by such report that complainant is indebted to said defend-
ants, he should, within a certain limited time, be ordered to
46 SUPREME COURT.
Longwitn et al. v. Butler.
deposite the amouDt of money due by him in court, or with
the Master, for the use of the defendants, upon which de-
posit, the defendants be decreed to re-convey within a cer-
tain time, by deed warranting against all incumbrances by
them done or suffered, or in default thereof, that the Master
should convey for them, and that they surrender possession
upon the payment of such money.
The interlocutory decree below is affirmed as here modi-
fied, (the parties having expressly stipulated that this court
might make the proper modification, if deemed necessary,)
and the cause remanded for further proceedings consistent
with the views here expressed, the appellants to pay the
costs of this court.
Decree affirmed.
DECISIONS
OF
THE SUPREME COURT
OF THE
STATE OF ILLINOIS,
DECEMBER TERM, 1846, AT SPRINGFIELD.
Peter Sears, appellant, v. Zebina Sears, appellee.
Appeal from Kane.
A. sued B. and the cause was tried by a jury, who rendered a verdict for A.
A motion for a new trial was made and overruled, and the following order
entered, to wit: "Zebina Sears v. Peter Sears. Assumpsit. This day came
the parties by their attorneys, and after argument it is ordered by the Court,
that the defendant's motion for a new trial be overruled, and tbat the
plaintiff have judgment and execution against the defendant for two hun-
dred and fifty-six dollars aDd fifty-eight cents, his damages aforesaid, to-
gether with his costs herein." On error being assigned, thai the Court
erred in awarding execution against the defendant without rendering a
judgment on the finding of the jury, it was held that there was a valid judg-
ment on the verdict, and that the judgment was substantially good.
Assumpsit in the Kane Circuit Court, brought by the ap-
pellee against the appellant, and heard at the October term,
1845, before the Hon. John D. Caton and a jury. Verdict
and judgment for the plaintiff below for $256.58. A motion
SUPREME COURT.
Sears v. Sears.
for a new trial was made and overruled, and the defendant
prosecuted an appeal in this court.
0. Peters, for the appellant.
1. G. Wilson, and W. B. Plato, for the appellee.
The second error, which is the only one relied on by the
appellant, is not well taken. The judgment is substantially }
if not technically correct. Comyn's Dig., title "Judgment,"
741-2. But even if it be informal, this court will render
Such judgment as should have been rendered on the verdict
in the court below.
The opinion of the court was delivered by
Treat, J.* This action was tried in the circuit court,
and a verdict returned in favor of the plaintiff for $256.58.
A new trial was demanded. Subsequently, the following
order was entered of record :
" Zebina Sears v. Peter Sears. Assumpsit. This day
came the parties by their attorneys, and after argument it
is ordered by the court, that the defendant's motion for a
new trial be overruled, and that the plaintiff have judgment
and execution against ;the defendant for two hundred and
fifty six dollars and fifty eight cents, his damages aforesaid,
together with his costs herein."
An appeal was taken by the defendant. The only as-
signment of error relied on is, that the circuit court erred in
awarding an execution against the defendant without ren-
dering a judgment on the finding of the jury. This cannot
be sustained. There is a valid judgment on the verdict ; it
may not be technically expressed, but is substantially good.
The judgment of the circuit court is affirmed with cost?.
Judgment affirmed.
♦Justice Young was absent, &c.
DECEMBER TERM, 1842. 49
Chapman v. Shattuck.
Thomas Chapman, plaintiff in error, v. Scovil Shattuck,
defendant in error.
Error to Boone.
A. sued B. in debt upon an appeal bond. At the return term, B. movedlo dis-
miss the suit, and filed a stipulation signed by the parties, setting forth that
the suit had been settled, and that it was to be dismissed at the cost of B.
The plaintiffs attorney resisted the motion , and filed an affidavit stating that
he and his client had agreed that he should receive aballance of seven dol-
lars, due for professional services, out of the proceeds of the judgment in
the suit ; that B. had notice of the agreement prior to the execution cf the
stipulation filed by him, and finally, that the settlement of the suit was
made without his knowledge or consent. The court dismissed the suit:
Held, that the court decided correctly, (a)
The doctrine is well settled, that a Court of Law will recognize and protect the
rights of the assignee of a chose inaction, whether the assignment be good
at Law, or in Equity only. If valid in equity only, the assignee is permit-
ted to sue in tbe name of the person having the legal interest, and to control
the proceedings. The former owner cannot interfere with the prosecution,
except so far as may be necessary to protect himself against the payment of
costs. After the debtor has knowledge of the assignment, he is inhibited
from doing any act which may prejudice the rights of the assignee. All
acts transpiring between the debtor and creditor, after such knowledge
and without the konwledge of the assignee, will be void as against the lat-
ter. But a case will not come within the principle laid down, unless there
is an assignment of the whole cause of action.
Debt upon an appeal bond in the Boone circuit court,
brought by the plaintiff in error against the defendant in
error, and heard before the Hon. Thomas C. Browne, at the
April term, 1846, on motion of the defendant to dismiss the
suit according to the terms of an agreement filed. The
motion was allowed, and the suit dismissed at the costs of
defendant. The intervening proceedings are substantially
stated by the court.
The cause was heard in this court upon an agreed state-
ment of facts, andjthe written arguments of counsel.
W. T. Burgess, who claimed an interest in the appeal
bond, contended, that after a debtor has had notice of the
assignment of a chose in action, it was unnecessary to show
(a) Tonpin vs. Gargnier, 12 111. R. 79, and notes ; Kendall vs. U. S. R. 7 Wal. U. S.
R. 113.
GIL. IH. 4.
50 SUPREME COURT.
Chapman v. Shattuck.
fraud between debtor and creditor ; and in support of the
position, cited Pinder.v. Morris, 3 Caines, 165, and several
authorities referred to in that case.
The case resolves itself into this : Can a client pledge to
his attorney the subject matter of the suit, to secure him his
fees ? Is not the adverse party bound, upon notice given to him,
to respect such pledge, and will not the courts, ex debito et
justitia, protect it ?
F. B. Hamlin, for the defendants in error.
Did the agreement between plaintiff and his attorney, Bur-
gess, create such a lien as would be binding on the defendant ?
An attorney's lien does not commence until' the rendition
of the judgment so as to bind the adverse party, and his lien
is confined to the attorney's taxable costs made in the suit.
Mann v. Smith, 4 Barn. & Aid. 466 ; Baker v. Cook, 11 Mass
338 : Welsh v. Hole, Doug. 238 ; 1 H. Black. 122 ; Bunker v.
Locke, 13 Mas. 525 ; Potter v. Mayo, 3 Greenl. 34 ; Shapley
y. Bellows 4 NewHamp. 347 ; People v. Hardenburg, 8 Johns
335.
It is well settled, that a plaintiff may, without consulting
his attorney, compromise an action with the defendant, and
take on himself the payment of the costs of the attorney, if
there be no fraudulent conspiracy to cheat the attorney out of
his costs. And where fraud or collusion is alleged, the
attorney is bound to make out a clear case, in order to entitle
him to aid from the court. Chapman v. How, 1 Taun. 341 •
Nelson v. Wilson, 4 Nev. & P. 385 ; 6 Bing. 568.
To constitute an actual fraud between two or more
persons to prejudice a third, connivance and design to injure
such third person by depriving him of some right, or other-
wise imparing it, must be shown. Actual fraud is not to be
presumed, but must be proved by the party who alleges it ;
and if the motive and design of any act may be ' traced to an
honest purpose and legitimate source equally as to a corrupt
one, the former ought to be preferred. McConnell v. Wil-
cox, 1 Scam. 365 ; Hubbard v. Turner, 2 McLean, 515.
DECEMBER TERM, 1846. 51
Chapman v. Shattuck.
The doctrine of attorneys' liens has never been so far ex-
tended in this county, or in England, as to reach the present
case. People v. Hardenburg, 8 Johns. 335.
It has recently been decided, that an attorney has a lien on
money which he has collected, for the amount due him in the
particular case in which it was received, but not for any
general balance due him for professional servicea rendered
in another case. Pope v. Armstrong, 3 Smedes & Marsh.
214. See, also, Cross od Liens, 32 Law Lib. 147 ; Lane v.
Church, 5 Madd. 207 ; John v. Dufendorf. 12 Wend. 261;
Philip v. Stagg, 2 Edw. 108 ; Harney v. Demos, 3 Howard.
174 ; Blunden v. Desart, 2 Conn. & Laws. 111. In the last
case referred to, it is decided that the lien of a solicitor upon
deeds of his- client's estate, cannot prevail against a judgment
creditor, for any greater amount of costs than those incurred
at the rendition of judgment.
The opinion of the court was delivered by
Treat, J.* This was an action of debt commenced by
Chapman against Shattuck. The declaration was on an ap-
peal bond in the penalty of seventy one dollars. At the
return term, Shattuck moved to dismiss the case and filed a
stipulation signed by him and Chapman, stating that the suit
had been settled, and agreeing that it should be dismissed
at the costs of Shattuck. The motion was resisted by W.
T. Burgess, Esq., the plaintiffs attorney. He read an a$-
davit, alleging in substance that it had been agreed between
him and his client that a balance of seven dollars, due him
for services as attorney in this and a former case, should be
paid out of the proceeds of the judgment to be recovered in
this suit. That before the date of the stipulation to dismiss,
he notified Shattuck of the agreement between him and his
client ; and that the settlement was made without his knowl-
edge or consent. The circuit court dismissed the case
according to the terms of the stipulation. That decision is
now assigned for error.
* Justice Youns took no part in the decision of this case.
52 SUPREME COURT.
Chapman v. Shattuck.
It is insisted that Burgess had such an interest in the sub-
ject matter of the suit, as to preclude the parties from
compromising it without providing for the payment of the
amount due him. If this possession can be sustained, it must be
on the ground that he was the equitable assignee of the
chose in action, on which the suit was instituted. The doc-
trine is now well settled, that courts of law will recognize
and protect the rights of the assignee of a chose in action,
whether the assignment be good at law, or in equity only.
If valid in equity only, the assignee is permitted to sue in the
name of the person having the legal interest, and to control
the proceedings. The former owner is not allowed to inter-
fere with the prosecution, except so far as may be ne-
cessary to protect himself against the payment of costs.
After the debtor has knowledge of the assignment, he is
inhibited from doing any act which may prejudice the,
rights of the assignee. Payment by him to the nominal cred-
itor, after notice of the assignment, will be no defence to an
action brought for the benefit of the assignee. Any compro-
mise or adjustment of the cause of action by the original
parties, made after notice of the assignment, and without
the consent of the assignee, will be void as against him.
Andrews v. Becker, 1 Johns, cases, 411 ; Littlefield v. Story,
3 Johns. 426 ; Raymond v. Squire, 11 do. 47 ; Anderson
v. Van Allen, 12 do. 343 ; Jones v. Withe, 13 Mass. 304 ;
Welch v. Mandeville, 1 Wheaton, 233 ; McCullom v. Coxe,
1 Dallas, 134. A partial assignment, however, of the chose
in action, will not suffice to bring the case within the prin-
ciple. The whole cause of action must be assigned. It was
well remarked by Justice Story, in Mandeville v. Welch, 5
Wheaton, 277, that "a creditor shall not be permitted to
split up a single cause of action into many actions, without
the assent of his debtor, since it may subject him to many em-
barrassments and responsibilities not contemplated in his
original contract. He has a right to stand upon the single-
ness of his original contract, and to decline any legal or
equitable assignments, by which it may be broken into pay-
ments. When he undertakes to pay an integral sum to his
DECEMBER TERM, 1846. 53
Sawyer v. The People.
creditor, it is no part of his contract that he shall be obliged
to pay in fractions to any other persons." In the case be-
fore us, it is not pretended that there was an assignment of
the entire cause of action. By the terms of the agreement,
Burgess was only to receive a portion of the proceeds of the
bond. This gave him no power over the suit. Chapman
had not so parted with his interest in the bond as to lose his
right to control it. Shattuck was not bound to notice the
claim of Burgess. The parties to the record were at full
liberty to compromise the case, and having done so, the cir-
cuit court did right in carrying their stipulation into effect.
The judgment of the circuit court is affirmed with costs.
Judgment affirmed.
Joseph Sawyer, plaintiff in error, v. The People op the
State of Illinois, defendants in error.
Error to Lee.
On the trial of an indictment for receiving stolen goods, the jury found the
accused guilty and fixed his term of service in the penitentiary at two years.
The Court, upon the rendition of the verdict, sentenced him to two years-
imprisonment in the penitentiary: Held, that the verdict, under the statute,
was too general, and substantially defective in not stating the value of the
goods received,and that the judgmentpronouncedthereon was unauthorised.
Indictment against the plaintiff in error for receiving-
stolen goods, tried at the May term, 1846, of the Lee Circuit
Court, before the Hon. Thomas C. Browne and a jury.
Verdict against the defendant below, in the form stated by
the court intheir opinion.
The cause was submitted to this court without argument.
J. 0. Glover & B. C. Cook, for the plaintiff in error, made
the following points :
The verdict of the jury was clearly insufficient in not
finding the value of the stolen property alleged to have been
received by the plaintiff in error. Highland v. The People
1 Scam. 392.
54 SUPREME COURT.
Sawyer v. The People.
The statute provides that no person shall be confined in
the penitentiary for receiving stolen goods, unless the value
of the property so received shall amount to five dollars.
Rev. Stat. 161, § 63.
D. B. Campbell, Attorney General, for the People.
The opinion of the court was delivered by
Treat, J.* The plaintiff in error was tried and convicted
on an indictment for receiving stolen goods. The goods were
described in the indictment as two prices of broad-cloth of
the value of sixteen dollars, and one piece of satinett of the
value of four dollars. The verdict of the jury was in these
words: " We the jury find the defendant guilty, and fix the
period of service in the penitentiary at two years." On this
verdict, the court sentenced the prisoner to two years' im-
prisonment in the penitentiary. To reverse that judgment,
he has prosecuted a writ of error. The assignment of errors
raises the question of the sufficiency of the verdict to sustain
the judgment of the court. The sixty third section of the
Criminal Code provides, that " no person convicted of lar-
ceny, or of buying or receiving goods or other things obtained
by larceny, burglary or robbery, shall be condemned to the
penitentiary, unless the money or the value of the thing sto-
len, bought or received, shall amount to five dollars." Rev.
Stat. 161. Under this provision of the statute, it was de-
cided by this court in the case of Highland v. The People,
1 Scam. 392, that a verdict of guilty on an indictment for
larceny without finding the value of the property stolen, was
not sufficient to uphold a judgment rendered on it. The
court held that it was the value of the stolen property which
determined the character of the offence, and regulated the
mode of the punishment. It therefore became necessary for
the jury to ascertain the value and state it in their verdict,
that the court might know with certainty, whether the ac-
cused should be subjected to punishment by confinement in
* Justice Young did not sit in this case.
DECEMBER TERM 1846. 55
Young v. Mason et al
the penitentiary, or by the payment of a fine and imprison-
ment in the county jail. The value of the goods might not
be correctly alleged in the indictment, and the people might
fail to show 'that all of them were stolen by the prisoner.
The jury in fixing the period of confinement in the peni-
tentiary, ought to show on the face of their verdict that they
acted within the provisions of the section herein before re-
cited. That should appear affirmatively, and not require
inference or implication to sustain it.
That decision is conclusive of the present case. The ver-
dict is too general ; it is substantially defective in not stating
the value of the goods received by the prisoner. The degree
of the defence he has committed, and the character of the
punishment he ought to suffer, are not clearly manifested by
the finding of the jury, (a) The judgment pronounced by the
circuit court on the accused was unauthorized, and must
be reversed.
The judgment of the circuit court is reversed.
Judgment reversed.
John A. Young, plaintiff in error, v. Samuel Mason et al., de-
fendants in error.
Error to Schuyler.
Jin appeal bond contained the following condition : " That if the said Samuel
Mason and John Mason should prosecute their appeal with effect, and
should pay whatever judgment might be rendered by the Circuit Court
upon the dismissal of the said appeal, then the bond to be void," &c. Suit
was brought thereon, a trial was had, and the Court rendered a judgment
in favor of the plaintiff for the debt, and assessed the damages at six cents
Held, that the bond, though not exactly in compliance with the statute by
reason of the omission of the words " or trial," after the word " dismifg
al,"was not void, but might still, to the extent of the obligation, be the
foundation of the action : Held, also, that the plaintiff in the Circuit Court*
during the pendency of the appeal, might have objected to the bond for in"
formality and have required that it be perfected ; and upon a refusal to
perfect it, the appeal would have been dismissed.
Debt upon an appeal bond given by the defendants in
error to the plaintiff in error. The cause was heard in the
Schuyler circuit court, at the September term, 1845, before
(a) Huggins vs. People, 39 m R. 241.
56 SUPREME COURT.
Young v. Mason etal.
the Hon. Norman H. Purple, without the intervention of a
jury, when a judgment was rendered in favor of the plaintiff
for $85.65 his debt, and six cents damages.
W. A. Minshall, for the plaintiff in error, argued the cause
ex parte.
The affirmance of the judgment in this case by default of
prosecution is precisely analogous and equivalent to a dis-
missal of the appeal. Fournier v. Faggott, 3 Scam. 349;
Mc Connell v. Swailes, 2 do. 571; Gardner v. Woodyard,
1 Ohio, 176, 179 ; Morse v. Hodsdon, 5 Mass. 314 ; United
States v. Bradley, 10 Peters, 343.
The opinion of the court was delivered by
Koerner, J.* Young, the plaintiff in error, brought suit
in the Schuyler circuit court against the defendants in error,
on an appeal bond, the bond containing the following condi-
tion : "That if the said Samuel Mason and John Mason
should prosecute their appeal with effect, and should pay
whatever judgment might bo rendered by the circuit court
upon the dismissal of the said appeal, then the bond to be
void," &c.
The declaration on said bond avers, that said appeal was
taken, and that the said Samuel and John Mason made de-
fault in the circuit court, whereupon the said court affirmed
the judgment of the justice of the peace, and gave jugdment
in addition for damages occasioned by the taking of the ap-
peal and for costs. It assigns as breaches of the bond: first,
that Samuel and John Mason did not prosecute their appeal
with effect ; second, that they have not paid the judgment so
affirmed in the circuit court. At the September term of the
Schuyler circuit court, 1845, the cause was submitted to
the court for trial, the defendants having pleaded non est
factum. The court found for plaintiff the debt in the decla-
ration mentioned, and assessed his damages at six cents,
overruled the plaintiff's motion for a new trial, and rendered
* Justice Young did not hear the argument and gave no opinion.
DECEMBER TERM 1846 57
Young v. Mason et al.
judgment according to the finding and assessment of dam-
ages.
Three errors are assigned :
1. The court erred in assessing the plaintiff's damages at
six cents, when, by law and the evidence of the case, they
should have been assessed at eighty- nine dollars and ninety-
two cents ;
2. In refusing a new trial ; and
3. In refusing plaintiff's motion to amend the bond in said
cause.
The last error is manifestly not well assigned, and was not
insisted upon on the argument. The first and second errors
will be considered together.
The law, under which this appeal was taken, provides that
the appeal bond shall contain the following condition : " that
if the appellant shall prosecute his appeal with effect, and
shall pay whatever judgment may be rendered by the court
upon the dismissal or trial of said appeal, then the obligation
to be void," &c.
The bond in question omits the words " or trial," and hence
does not comply with the statute in the form laid down by
it. Most of the authorities cited by the plaintiff in error
establish the point, that voluntary bonds, though not ex-
actly in conformity with the requirements of the statute, are
not therefore void, but may still, to the extent of- their obli-
gation, be the foundation of an action. This court, in the
case of Fournier v. Faggott, 3 Scam. 349, has fully adopt-
ed the same doctrine, (a) The court below also treated the
bond under consideration as a valid one, and gave judgment
on it, although but nominal damages. The point really in
controversy is, can an obligor be held responsible by impli-
cation beyond the extent of his obligation, plainly expressed
in the terms of the bond. Here the obligors had stipulated
to pay a certain amount of money on the happening of a
certain event, viz : the dismissal of the appeal. The record
shows that the event did not happen, but that the case was
considered by the court, the judgment below affirmed, and
judgment for an additional sum, the damages and costs, given
(a) Sharp vs. Bedell, 5 Gil. R. 93 ; Erlinger vs. People, 36 Bl. R. 45S.
58 SUPREME COURT.
Youn°- v. Mason et al
The court is of opinion, that the record introduced by plain-
tiff in error, showing this state of facts, did not establish a
breach of the condition in the bond. The first breach,
however, was proved by said record, and the court found
properly for the plaintiff on said breach. There being no
evidence given that the mere non-prosecution of the appeal
by the defendants in error caused any damages, the court
correctly gave but nominal damages.
The plaintiff's counsel having principally relied on a for-
mer decision of this court (McConnell v. Swailes, 2 Scam.
571, ) to establish his position, we think it proper to express
our views on that case, and the distinction which we draw
between the case at bar and the one referred to.
In that case, the bond given by the appellant was in the
precise language of the law, as it then was, conditioned "to
pay the debt and costs in case, the judgment shall be affirmed
on the trial of the appeal." R. L. 1833, 395. In the circuit
court the appeal had been dismissed, and in a suit on the
appeal bond, this court decided that the dismissal of an
appeal in its effect was equivalent to an affirmance of the
judgment of the justice .of the peace, so as to entitle the
party to claim a forfeiture of the bond and to have his action
therefor.
It will be perceived that the law, in the revised code of
1833, referred in terms to the case of a trial only ; but it
would have been absurd to suppose that it intended to se-
cure the rights of but one class of successful suitors, and to
exclude another clearly entitled to the same security. The
appellant had given bond as the law required, and the ap-
pellee had it not in his power to call upon his adversary to
give him a more comprehensive one. The appeal having
been dismissed in the circuit court, it followed that the
judgment below was, virtually, thereby affirmed. But when
the appeal remains in court, and the court renders the same
judgment which has been given below, adding judgment
for damages for the delay, the judgment below becomes ex-
tinct, and a new one is created, attended with consequences
very different from those which would have followed the
DECEMBER TERM 1849 59
The People v. Percells.
justice's judgment. In the case at bar, it was in the power
of the plaintiff in error, when the appeal was pending in the
circuit court, to object to the bond of the appellants for
informality, and to have it perfected. If they had refused
to do so, the appeal would have been dismissed, and the con-
tingency would have happened provided against in the bond.
The plaintiff in error must abide by his own neglect, and we
cannot, however willing we might be, furnish the relief he
has sought, upon legal principles.
We are of opinion there is no error in the record. Judg-
ment below is affirmed with costs.*
Judgment affirmed.
The People of the State of Illinois ex rel. William T. Bur-
gess, plaintiffs in error, v. Albert Percells, defendant in
error.
Error to Boone.
A. was duly elected ajustice:pf the peace, and, within twenty days thereafter
filed his official bond in compliance with the statute in such case made and
provided, except that the condition thereof omitted to recite the following
requirements : " and that he will well and truly perform all and every act,
and duty enjoined on him by the laws of this State to the best of his skil*
and abilities." After the expiration of twenty days aforesaid, he filed a
newljond with other securities, containing the provision omitted to be stated
in the first : Held, that the first bond was insufficient, that the second was
not filed within the time required by the Statute, and that, therefore, the
office became vacant, (a)
The Clerk of the County Commissioners' Court may decide judicially what
shall be the penalty of the justice's bond at any sum between five hundred
and one thousand dollars, and also upon the sufficiency of his securities.
But the conditions of the bond are fixed by law, and are beyond his dis-
cretion or control.
The proper practice in informations in the nature of quo warranto is, for the
defendant to plead, instead of answering the same.
Information in the natute of quo warranto against the
defendant in error, questioning his right to hold the office of
justice of the peace of Belvidere precinct in the county of
(a) Green vs. Wardwell, 17 111. R. 279.
* A petition for a re-hearing was filed in this case and denied.
60 SUPREME COURT.
The People v. Percells.
Boone. The cause was heard in the circuit court of that
county before the Hon. Thos. C. Browne, at the September
term 1846, upon a demurrer to the defendant's answer. The
demurrer was overruled, the information dismissed, and costs
awarded to the defendant against the relator, who brought
the case to this court by writ of error.
The case was submitted to the court upon the written ar-
guments of.
S. A. Hurlbut and W. T. Burgess, for the prosecution,
and of
J. L. Loop and F. B. Hamilton, for the defendant in error.
The opinion of the court was delivered by
Purple, J.* At the September term of the Boone county
circuit court, A. D. 18-46, the plaintiff filed an information
in the nature of a quo warranto against the defendant, ques-
tioning his right to hold the office of justice of the peace of
Belvidere precinct, in said county.
The information shows that the defendant was duly elected
a justice of the peace of the precinct afore said, on the 25th day
of October, A. D. 1845. That on the 4th day of November,
A. D. 1845, he filed his official bond in compliance with the
requisitions of the 10th section of the Revised Statutes of
1845, concerning justices of the peace and constables, ex-
cept that the condition thereof omitted to recite : "and that
he will well and truly perform all and every act and duty
enjoined on him by the law of this State, to the best of his
skill and abilities." That by his neglect to comply with this
provision of the statute, the office became vacant. Not-
withstanding which, the defendant has ■ entered upon and
continues to execute the duties of said office.
The answer of the defendant admits the statements in the
information to be true ; and shows further, that the defeudant,
on the 24th day of December, A. D. 1845, at the request of
*Justice young was absent and took no part in the decision.
DECEMBER TERM, 1846. 61
The People v. Percells.
his securities in his original bond, filed a new one, with other
securities, containing in its condition the statutory provi-
sion which had been omitted in the first, and in all respects,
except in regard to the time of filing in comformity to the
statute before referred to. Both these bonds were in due
form of law approved by the clerk of the county commis-
sioners' court.
The plaintiff demurred to the defendant's answer. The
defendant joined in the demurrer. Upon the hearing, the
court overruled the demurrer., dismissed the information and
awarded the defendant his costs against the relator. The
plaintiff seeks to reverse this judgment.
Two questions are presented by the record : first, whether
the bond filed by the defendant on the 4th day of October,
A. D. 1845, was in substance the bond required by the
statute : second, whether, if the same is substantially de-
fective, such defect has been cured by the filing of the second
bond. A consideration of the law and the reasons which in-
fluenced the Legislature in its passage, must determine these
questions.
The Act concerning justices of the peace and constables,
&c, R. S., § 10, provides that "every justice of the peace,
before entering upon the duties of .his office, shall execute
and deliver to the clerk of the county commissioners' court
of his county, and within twenty days after his said election,
a bond, to be approved by said clerk, with one or more good
and sufficient securities in the sum of not less than five hun-
dred nor more than one thousand dollars ; conditioned that
he will justly and fairly account for and pay over all moneys
that may come to his hands under any judgment or other-
wise, by virtue of his said office ; and that he will well and truly
perform all and every act and duty enjoined on him by the
law of this State, to the best of his skill and abilities."
The 12th section of the same Act further provides, that "if
any justice of the peace or constable shall not, within twenty
days after his election or appointment, take the oath and
give bond as aforesaid, the said justice or constable shall not
be permitted after that time to be so qualified, or to take his
62 SUPREME COURT.
The People v. Purcells.
said office ; but the said office shall be considered as vacant,
and shall be filled accordingly."
The conditions of the defendant's bond, of the 4th of Octo-
ber, 1845, are not substantially in accordance with the law.
The variance is most material. The justice and his sureties
are only bound that he will pay over such money as he shall
collect as justice of the peace, while the obligation which
the law imposes, "that he will well and truly perform all and
every act and duty enjoined on him by the laws of this State,
to the best of his skill and abilities," constitutes no portion
of the condition of the bond.
The security required to be given by a justice of the peace
was not alone designed for the protection of citizens and
suitors, for whose use he might receive money, but gene-
rally for the protection of the people against any acts of
misfeazance, malfeazance or nonfeazance of such justice.
It is the manifest duty of every justice of the peace, upon
proper application, to issue a summons, capias, execution or
other legal process within his jurisdiction, but his refusal to
do so would be no breach of any condition in this bond ; and
the party who, by such refusal, should lose the debt, would
be remediless unless the magistrate should chance to be
personally of sufficient ability to respond in damages. For-
asmuch, then, as property qualifications ,for office are some-
what, and perhaps justly, odious in a government, the foun-
dation of which is equality of rights, the Legislature, having
in view this fundamental principle, designed to distribute
those offices, essential and necessary for the maintenance of
order and law, and the preservation and perpetuation of the
constitution of the country, equally amoung the poor and rich,
according to their respective merits, and at the same time
to afford protection to any and every citizen who might be
injured by the act or omission of any such officer who might
be personally irresponsible.
This bond is clearly defective in substance ; it is not the
bond required by the statute. The most essential and im-
portant part of the condition is wanting, and the justice and
his sureties are only answerable upon it for the performance
DECEMBER TERM 1846. 63
The People v. Percells.
of a single duty. For neglect or refusal to perform every
other, it furnished no security.
If the conditions which were inserted, had been omitted,
and those omitted had been incorporated into the bond, it
would have been sufficient, for the reason that the obligation
"to perform all and every duty enjoined on him by law, "
would have included the duty to pay over money received by
the justice in his official capacity. But is this defect cured
by the filing of the subsequent bond on the 24th December,
1845, more than twenty days after the election of the defend-
ant as justice of the peace ? It is not. The statute prescribes
the particular condition of the bond to be filed, the time
within which it is to be done, and expressly declares that if
the justice shall not, within the twenty days after his elec-
tion, take the oath and give the bond as aforesaid, he shall
not be permitted after that time, to be so qualified or to take
said office ; but the said office shall be considered vacant,
and filled accordingly.
The filing of a bond with the proper and legal conditions,
more than twenty days subsequent to the election, confers
no right upon the defendant to hold the office. Immediately
upon the expiration of the twenty days, by express law, it
became vacant. It could only be filled by an election. The
execution and filing of the bond, with substantially such con-
ditions as the statute prescribes, constituted a condition
precedent to the defendant's right to hold the office. And
although the bond filed by him after the vacancy had occur-
red, will be obligatory upon him and his securities as an in-
demnity against any misconduct of his under color of office,
it cannot operate to invest him with an office which had be-
come vacant through his negligence or inattention.
Neither is it true, as is contended by the defendant's coun-
sel, that the approval of the bond by the clerk of the County
Commissioners' Court is such a judicial act as is conclusive
of the defendant's right. The clerk may decide judicially
what shall be the penalty of the justice's bond at any sum
between five hundred and one thousand dollars, and also upon
the sufficiency of his securities. The conditions of the bond
are fixed by law and are beyond his discretion or control.
64 SUPREME COURT.
Gear v. Clark.
In disposing of this case, it is deemed proper to remark
that the proper practice in informations of this sort is, for the
defendant to plead instead of answering to the same; and
that the answer of the defendant has been treated as a plea
in this decision, and the technical distinction between the
two been disregarded, (a)
The judgment oi the circuit court of Boone county is
reversed, and judgment entered in this court, that the de-
fendant is guilty of usurping, and intruding into, and unlaw-
fully holding, and exercising the office of justice of the
peace for Belvidere precinct, in the county of Boone, in the
State of Illinois ; and it is further adjudged that the said de-
fendant be ousted and altogether excluded from the said of-
fice, and that the Relator recover his costs, both in this court
and in the court below, and that execution from said courts
respectively issue therefor.
Judgment reversed.
Hezekeah H. Gear, plaintiff in error, v. Thomas Clark, defen-
dant in eiTor.
Error to Jo Daviess.
A. sued B. in assumpsit, a capias ad respondendum was issued, andB. held
to bail . Upon a return to the capias ad satisfaciendum of non est inven -
tus, an action of debt was commenced upon the bail bond, and alter the
return day of the summons, the bail surrendered the principal debtor in
open Court, who was taken into the custody of the sheriff. The bail plead-
ed non est factum, and two pleas setting forth the surrender, &c. The
latter was demurred to, and the demurrer sustained by the Court : Held,
that the demurrer was properly sustained, the statute not authorizing the
surrender of the principal after the return day of tbe process against the
bad.
Debt upon a bail bond executed by the plaintiff in error
and others to the defendant in error, and heard before the
Hon. Thomas C. Browne, in the circuit court of Jo Da-
viess county, at the June term, 1843.
During that term, the present plaintiff in error surren-
dered the principal debtor in open court before any pro-
ceedings were had, and he was ordered into the custody of
the sheriff. A plea of non est factum, and two special pleas
(a) Clark vs. People, 15 III. R. 213.
DECEMBER TERM, 1846. 65
Gear v. Clark.
setting forth the surrender, &c. were then filed, a demurrer
to the special pleas interposed, the demurrer sustained, and
judgment rendered for the plaintiff below.
J. J. Hardin & D. A. Smith, for the plaintiff in error.
The principal error relied upon in this case is, the sustain-
ing of the demurrer to the special pleas.
The correctness of this assignment of error, we suppose
must be tested by the true construction of the fifth section of
the Revised Statutes, p. 82. We shall not undertake to con-
strue it. The wording of the statute seems contradictory,
contemplating in one part of it the surrender by the bail in
vacation before the return of the process against him as
such, and in another part the statute seems to give the bail
the right to surrender his principal to the court in which
the suit may be pending during the sitting thereof. As
illustration of the common law rights of bail in such a case as
that now before us we refer to 1 Bac. Abr. 342. At the
common law, no reasonable doubt can be entertained as to
the soundness of the pleas. A statute to repeal the common
law must be clear and unequivocal as to its terms. We
maintain that the statute before referred to cannot be so
characterized. We trust that the court will give such a
construction to "it, as will most effectually protect the bail
from a proceeding against him somewhat penal in its charac-
ter and consequences.
A surrender before judgment in the second scire facias is
sufficient. Cro. El. 618; 2 Com. Dig. 51.
In the reason and nature of things, and so far as the inter-
est of the judgment creditor and its protection by the sur-
render of! the principal is concerned, there can be no essential
difference between his surrender on a day just before Court,
and a surrender of him during the term to which process
against the bail is returnable, and before judgment is ren-
dered against the bail.
J. W. Chickering, for the defendant in error. ft
The defendant in error submits, with the plaintiff in error
GIL. in. — 5
Q6 SUPREME COURT.
Gear v. Clark.
that the decision of this case depends upon the construction
which the court may give to the fifth section of the statute
relating to bail, and in which it is conceived there is nei-
ther ambiguity nor uncertainty. The statute above referred
to allows the bail to surrender his principal "at any time
before the return day of the process sued out against him."
Perhaps had the court below accepted a surrender after
that day, and entered an exoneratur upon the bail bond, such
an extension of favor might not have been ground for error ;
but in this case such a course has not been adopted. The
apparent ambiguity in the section above referred to is re-
moved, upon the supposition that process might be made
returnable upon some day during the term after the first day.
And if it is that a term of court is but one day, it is re-
plied that this principle cannot apply where the legislature
have taken integral portions of the term and designated them
"days of term."
The statute in question, if not a direct affirmance of the
common law, is, in its provisions, analogous to the princi-
ples of the latter, which are the same as laid down in 1 Bac.
Abr. 342, and 2 Comyn's Dig. 48, et seq., appear to be that
the bail may surrender his principal upon or before the re-
turn day of the process sued out against him, and not after-
wards, except from the "grace and favor" of the court ;
that a surrender made upon or before such day may be
pleaded by the bail in bar to any recovery against himself ;
but that a surrender after such day, not being "ex debito et
justitia," cannot be so pleaded.
The opinion of the court was delivered by
Caton, J. * The only question presented for the conside-
ration of the court in this case is, whether the surety in a bail
bond can surrender his principal on or after the return day
of the process sued out against the bail.
At common law, the delivering of the defendant to bail being
a matter of record, the party was either entitled to a scire
. —
• Justice Young took no part in the decision of this case.
DECEMBER TERM, 1846. 67
Gear v. Clark.
facias, or lie might bring debt, and although, upon the re-
turn of the capias with non est inventus, the recognizance
was forfeited and the right of action was complete, yet, in
view of the hardship on the bail, the Courts adopted rules
by which the principal might be surrendered afterwards. In
case the plaintiff proceeded by sci. fa., the principal might
be surrendered on or before the return day of the second
sci. fa. where two nihils were returned, or on or before the
return day of the first sci. fa. where it was served, and the
bail thereby discharged. Where the plaintiff proceeded by
action of debt, the principal might be surrendered in open
Court, within eight days after the return day of the process
against the bail. 1 Bac. Abr. 342.
This discretionary power, however, has now been taken
from the Courts by the legislature, and the whole matter set-
tled by the law, as found in section five, chapter fourteen, of
the Revised Statutes, upon the true construction of which the
validity of these pleas depend. That section provides that
" it shall be lawful for the defendant in any action in any
Court of record, when bail shall have been given as afore-
said, to surrender himself, or for his bail to surrender him,
at any time before the return day of the process which may
have been sued out against him as bail, to the Court in which
the suit may be pending during the sitting thereof, or in vaca-
tion, to the sheriff of the county in which process was served."
At the first reading of this statute, it would seem to be al-
most unintelligible, or at least somewhat inconsistent, in view
of our Practice Act, which provides that all original process
shall be returnable on the first day of the term, so that if the
principal be surrendered during the sitting of the Court in
which the suit may be pending against the bail, it must be
on or before the return day of the process against the bail.
As such a reading of the law would be entirely inconsistent,
we must look for some other meaning. The whole difficulty,
however, consists in determining what the legislature meant
bv the terms "action" and "suit," as found in the passage
quoted. If, in the construction, we apply either of these
terms to the proceeding against the bail, we arc utterly una-
68 SUPREME COURT
Gear v. Clark
ble to give it any sensible construction ; if, however, by those
words we are to understand the original action against the
principal, .the whole passage becomes plain and intelligible.
Thus, in any action in which the defendant is held to bail,
the right is secured to the principal to surrender himself, or
for the bail to surrender him, to the Court in which the suit
is pending, in term time, or to the sheriff of the county in
which the suit is pending, in vacation, at any time before the
return day of the process sued out against the bail. This
construction of the statute is rendered more apparent by a
transposition of the passage quoted thus: "It shall be lawful
for the defendant in any action in any Court of record, when
bail shall have been given as aforesaid, to surrender himself,
or for his bail to surrender him, to the Court in which the
suit may be pending, during the sitting thereof, or in vaca-
tion, to the sheriff of the county in which the process was
served, at any time before the return day .of the process
which may be sued out against him as bail." This, we think
is the true construction of^ the Statute, and, consequently
the surrender of the principal after the return day of the
process against the bail, did not 'exonerate him, and conse-
quently the pleas demurred to, stating that fact, present no
defence to the action, and the demurrer was properly sus-
tained.
The judgment of the circuit court is affirmed with costs.*
Judgment affirmed
* A petition for a re-hearing was filed ir> this case, andjdenied.
DECEMBER TERM, 1846. 69
Watson et al. v. ^Thrall.
Benjamin G. Watson et al., appellants, v. Russell Thrall,
appellee.
Appeal from Kane.
A. recovered a judgment in the Circuit Court against B. and four other defend-
ants, all of whom prayed an appeal. The appeal was granted on condition
that they enter into bond with a certain individual as surety. The bond
was executed by four of the defendants with the surety required, and the
appeal was duly entered in the Supreme Court. A moved to dismiss the
appeal because the order of the Circuit Court was not complied with : Held,
that the appeal was not perfect, and the same was dismissed.
The appellee recovered a judgment in the Kane Circuit
Court against the appellants, five in number, all of whom
prayed an appeal to this court. It was granted upon com-
dition that the defendants enter into bond with Oliyer Elli-
thrope, as surety. The bond was executed, within the
time prescribed in the order of the court, by four of the de-
fendants and the surety.
The appeal was duly entered in this court, and a motion
was made by the counsel for the appellee to dismiss it, be-
cause the order of the court was not complied with by all
the appellants.
I. G. Wilson and B. F. Fridley, for the appellee.
The order of the circuit court required all of the defend-
ants to join in the execution of the appeal bond. This not
being done the appeal should be dismissed. Such is the
uniform practice of this court. Carson v. Merele, 3 Scam.
168 ; Ryder v. Stevenson, ib. 539.
J. Butterfield, for the appellants.
The case of Ryder v. Stevenson appears to be the mere
statements of the Reporter. It is not the opinion of the
court. If it is, it is submitted whether the court gave due
consideration to the question. Two or more of several de-
fendants may pray an appeal and subsequently one of them
may not desire to perfect it. His non-compliance should
70 SUPREME COURT.
"Watson et al. v. Thrall.
not operate against the others who have complied with the
order of the circuit court. The statute authorizes those
who do appeal to use the names of their co-defendants.
Rev. Stat. 420, § 51.
The opinion of the court was delivered by
Treat, J.* Thrall recovered a judgment against five de-
fendants. They prayed an appeal, which was granted on
their entering into bond with one Ellithrope as surety. The
bond was executed by but four of the defendants and the
surety. The appellee now moves to dismiss the appeal.
The statute authorizes one of the several defendants to re-
move a cause to the Supreme court by appeal ; and in such
case, no costs are to be taxed against those who do not join
in the appeal. Rev. Stat. 420, § 51. Here the appeal was
demanded by all of the defendants, and allowed by the court
on the condition that they should all enter into the bond.
Only a part of them have executed it. The condition has
not been complied with. The appeal has not been perfected.
In approving of the surety, the circuit court may have
acted with reference to the circumstances of the parties who
were to prosecute the appeal. The appellee has the right
to insist on the benefit of all the indemnity intended by the
court. If but a part of the defendants, desired an appeal,
the application to the court should have been made and ob-
tained on their behalf only. The cases of Carson v. Merle,
3 Scam. 168, and Ryder v. Stevenson, ib. 539, are in point.
The appeal will be dismissed with costs, (a)
Jippeal dismissed.
(a) See Milllenborg vs. Murphy, 40 111. R. 46.
* Justice Young was absent.
DECEMBER TERM, 1846. 71
Rainey v. The People.
William Rainey, plaintiff in error, v. The People of the
State of Illinois, defendants in error.
Error to Clinton.
The only mode of preferring an indictment is through the medium of a grand
jury, and it is their imperative duty to make their presentments iu open
Court. The indictment being the foundation of all the subsequent proceed-
ings in the cause, the record ought to show affirmatively the returning of the
indictment into Court by the grand jury. This is a necessary part of the
record, and can no more be dispensed with than the verdict of the jury.
Indictment for murder, in the Washington circuit court,
at the September term, 1845, against the plaintiff in error.
The venue was changed to Clinton county and the cause
there tried at the September special term 1845, the Hon.
Gustavus P. Koerner presiding. The jury found the de-
fendant guilty of manslaughter, and sentenced him to one
years's imprisonment in the penitentiary. The defendant
prosecuted a writ of error in this court.
L. Trumbull, and B. Bond, for the plaintiff in error.
The motion in arrest of judgment should have been sus-
tained, the record not showing that the indictment was ever
returned into court. It must appear on the record that the
grand jury returned the indictment in open court, "a true
bill." Rev. Stat. 409, § 3 ; 1 Chitty's Crim. Law, 324 ;
Gardner v. The People, 3 Scam. 85 ; Mc Kinney v. The
People, 2 Gilman, 540.
The record transmitted from Washington county to Clin-
ton county contains no copy of the indictment, and the paper,
upon which Rainey was tried, is not referred to in said
record so as to identify it as the original indictment. That
this was necessary, Wright v. Kirkpatrick, 4 Scam. 340.
D. B. Campbell, Attorney General, submitted the cause
on the part of the defendants in error without argument.
72 SUPREME COURT.
ltainey v. The People.
The opinion of the court was delivered by
Treat, J.* It appears from the record in this cause, that
at the September term 1845, of the Washington circuit
court, William Rainey was arraigned, and pleaded^ not guilty
to an indicment for murder ; that on his application, a change
of venue was awarded to the Clinton Circuit Court, and
that he entered into recognizance for his appearance at
the next term thereof. This is shown by the transcript of
the record certified to the Clinton Circuit Court. With
the transcript, there was filed an indictment against Rainey
for the murder of Alexander Keith, which purported on its
face to have been found at the April term 1845, of the Wash-
ington circuit court. The foregoing is all of the evidence
furnished by the record of the finding of an indictment against
Rainey. He appeared at the September term 1845, of the
Clinton circuit court, and was put on his trial. The jury
found him guilty of the manslaughter of Keith, and fixed
the period of his imprisonment in the penitentiary at one
year. He was not present when the verdict was received.
An order was thereupon made, forfeiting his recognizance,
and awarding a capias against him. At the April term 1846,
he appeared and entered motions for a new trial, and. in ar-
rest of judgment. These motions were denied by the court,
and judgment pronounced on the prisoner in pursuance of
the verdict. He then obtained a supersedeas and sued out
a writ of error to this court.
The principal question arising on the assignment of errors are,
first, does the record sufficiently show the findiug of an indict-
ment against Rainey ; and second, was the verdict properly re-
ceived in his absence.
On the first point there can be no doubt. There is nothing in
the record to sustain the conviction. The only mode of prefer-
ring an indictment is through the medium of a grand jury It is
the imperative duty of the grand jury to make this
presentment in open court. The indictment is the foun-
*WiLSON, C. J. and Justice Lockavood did not sit in this case.
DECEMBER TERM 1846.
Eainey v. The People.
dation of all the subsequent proceedings in the cause ; and to
uphold them, the record ought to show affirmatively, the re-
turning of the indictment into court, by the grand jury. This
is a necessary part of the record, and can no more be dis-
pensed -with, than the verdict of the jury, or the judgment
of the court. Gardiner v. The People. 3 Scam. 83 ; McKin-
ney v. The People, 2 Gilman, 540. The record before us is
manifestly defective. It does not appear that any indict-
ment against Rainey ■was ever exhibited in open court by
the grand jury of Washington county. The transcripts sen*
to the Clinton Circuit Court failed wholly to show it, and
the prosecuting attorney ought to have obtained a record,
showing this important fact, before putting the prisoner on
his trial. (a) More attention should be paid to these matters by
those having the charge of criminal prosecutions. Many of
the records transmitted to this court in this class of cases,
are carelessly made up, and are evidently imperfect and in-
complete. In such cases, it would be very proper for the
Attorney General to see that the defects are supplied, and
when necessary, to suggest a diminution of the record, and
sue out a certiorari to the court below. The first error fully
disposes of the case, and no opinion will be expressed on the
second question.
As the record here may not contain a correct history of
the proceedings in the circuit court, the cause will be re-
manded to the end that further proceedings may be had in
that court, should the state of the records there warrant it.
The judgment of the Clinton Circuit Court is reversed,
and the cause remanded.
Judgment reversed.
(a) Gardner vs. People, 20 111. R. 433.
74 SUPREME COURT.
Longwith et al. v. Butler.
Thomas Longwith et al. n. Thomas T. Butler.
Motion to re tax Fee Bill,
Upon the filing of a record in the supreme court, the clerk has a right to issue
a scire facias and file the writ of error, unless expressly directed by Ihe par-
ties not to do so. The writ of error in fact is never issued when the re-
cord has been filed, but remains on file in the oflice. The scire facias is
only process which issues.
The twenty-second rule of the supreme court does not apply to written argu-
ments, nor is the defendant entitled to have the making of his abstract and
brief charged against the plaintiff, unless the court have first decided that
the plaintiff's abstract and brief is insufficient, and the plaintiff's counsel
have failed to file a satisfactory one.
This cause was decided at the last term of this court,
(ante 32) and at the present term, the appellants, by Hardin
& Smith, their counsel, entered a motion to re-tax the fee
bill issued therein, which was as follows, to wit :
"Appellants, by their counsel, move the court to direct
the clerk of said court to re-tax the fee bill by him issued
28th February, 1846, and to disallow and exclude from the
same the second and sixth items in the same, because they
have been therein taxed contrary to the rules and practice
of this court
Appellants, in regard to the said sixth item, except to the
same because, by their counsel, they filed on abstract and
written argument in the case, on which it was submitted on
their part, and were not ruled by the court, on the motion
of the appellee, to file any other or further abstract of the
case ; and because said sixth item is and was on account of
an argument filed by the appellee's counsel in the case,
which the clerk in his own error caused to be printed, and
for which, if he is entitled to any compensation, he of right
ought to look to appellee or his counsel for the same."
M. McConnell, for the appellee, resisted the motion.
Per Curiam. The first item objected to by the counsel
for appellants is the charge for writ of error, scire facias,
&c, &c, &c, while the case as it is alleged was brought
here by agreement, and no process actually issued.
DECEMBER TERM, 1846. 75
Longvrith et al. v. Butler.
The court is of the opinion that the charge is a proper
one. Upon the filing of the record, the clerk had a right to
issue a scire facias and ffile the writ of error, unless he
was expressly directed by the parties not to do so. The
writ of error, in fact, is never issued, when the record has
been filed, but remains on file in the office. The scire fa-
cias is the only process which issues.
The other item complained of, is the sixth, being a charge
for making "copies of abstracts, 856 folio, $128." Upon an
inspection of the papers in thi3 case it appears, that the case
was submitted by both parties upon briefs and written argu-
ment. The appellant had filed his abstract and written ar-
gument in compliance with the 20th rule of this court Nei-
ther the court nor the counsel for appellee, made any objec-
tion to said abstract, and in fact, it was fully sufficient for
the purposes intended, it J being also accompanied with an
elaborate argument.
The appellee also] filed an abstract of the case together
with an argument, copies of which abstract and argument he
had made out by the clerk, and for which copies, the charge
ls made against the appellant, who was the unsuccessful party-
The 22d rule of this court, by which the defendant's
counsel is permitted, if he be not satisfied with the abstract
or abridgment by the plaintiff's (appellant's) counsel, to fur-
nish each of the Justices of this court, which lack for the
abstracts, as shall deem necessary to a full understanding
of the merits of the cause, we think does not apply to this
case.
It can never apply to a written argument, nor is the de-
fendant entitled to have the making out of his abstract and
brief charged against the plaintiff, unless the court have
first decided that the plaintiff's abstract and brief is not suf-
ficient, and the plaintiff's counsel have failed to file a satis-
factory one.
We look upon the transaction in this case as one of a pri-
vate nature between the clerk and defendant's counsel, and
for which, none but the defendant can be held responsible
by the clerk.
Motion allowed.
(a) Phelps vs. Funihouser, 40 El. R. 27.
76 SUPREME COURT.
Mc Quoid v. The People.
William McQuold, plaintiff in error, v. The People of the
State of Illinois, defendant in error.
Error to Edgar.
In an indictment for resisting an officer, it is not necessary to describe the
mode of the opposition. That is properly a matter of evidence.
An indictment for resisting an officer set forth that the defendant opposed
such officer while attempting to serve a summons, which summons was
a lawful process : Held, that the averment that the process was a lawful
one is as an averment of jurisdiction in the officer issuing it.
In an indictment for resisting an officer, it must be distinctly charged that
the person resisted was an officer, was opposed while acting in such
capacity, both of which facts must be proved at the trial. It is not
necessary to set out in the indictments in haec verba, the process under
which he was acting.
A plea of former acquittal omitted to state that an offence charged in two
indictments were one and the same offence : Held, on demurrer to the
plea, that it was bad, and that the demurrer only admitted the truth of
the plea as pleaded.
A defendant cannot assign for error, in a cival or criminal proceeding, any
decision, order or judgment of a Court which is manifestly in his favor.
Indictment for resisting an officer, &c, against the plain-
tiff in error, in the Edgar circuit court, heard at the Octo-
ber term 1846, before the Hon. Samuel H. Treat and a jury.
A verdict of guilty was rendered, and the defendant was
fined $20.
The allegations in the indictment, and the several proceed-
ings in the cause are substantially set forth in the opinion of
the court.
J. Pearson, for the plaintiff in error.
The indictment does not set out the means and manner of
the opposition, as 'required by law. 1 Chitty's crim. Law,
227, 229 and note ; 3 Bac. Abr. 554, G ; ib I. 572 ; Arch-
bold's crim. PI. 315, note a ; Cowper, 683 ; 3 Chitty's crim.
Law, 1000.
Neither does it set forth that the officer issuing the process
had jurisdiction. Robinson v. Harlan, 1 Scam. 237 ; State
v. Tuell, 6 Blackf. 344.
The process should have been set out in the indictment in
haec verba.
DECEMBER TERM, 1846. 77
McQuoid v. The People.
The plea of former acquittal was a bar to the second in-
dictment.
The judgment of the court upon the verdict was erroneous,
the statute providing that the accused shall, on conviction,
be fined and imprisoned. Rev. Stat. 167, § 92. •
D. B. Campbell, Attorney General, for the defendants in
error.
Every indictment or accusation of the grand jury shall be
deemed sufficiently technical and correct, which states the
offence in the terms and language of the criminal code, or
so plainly that the nature of the offence may be easily under-
stood by the jury. Rev. Stat. 181, § 162.
The opinion of the court was delivered by
Purple, J.* At the October term. A. D. 1846, of the
Edgar county circuit court, the plaintiff was indicted under
the 92nd section of the criminal code, for resisting an
officer in the service of process. The indictment charges
that the plaintiff, on the 14th day of January, 1846, at the
county of Edgar, unlawfully, knowingly, and wilfully, did
oppose one John A. Metcalf, (the said Metcalf then and
there being a constable in and for said county, duly qual-
ified, )in his, [the said Metcalf 's] then and there attempting
to serve a summons in favor of George Cunningham, for
the use of William James, against Washington McQuoid,
and William McQuoid, issued on the twelfth day of January,
eighteen hundred and forty six, by Samuel Connelly, then
and there being a Probate Justice of the Peace, in and for
said county, duly qualified and commissioned, and then and,
there acting as an ordinary justice of the peace, and the said
summons then and there being a lawful process of the said
Probate Justice of the Peace.
The plaintiff entered a motion to quash the indictment,
which was overruled.
*Wilson, C. J. and Justice Locicwoor^did not sit in this case.
78 SUPREME COURT.
McQuoid v. The People.
He then filed his plea of former acquittal to which there
was a demurrer, which the court sustained.
The plea of not guilty was then entered by the plaintiff,
a verdict of guilty was returned against him by the jury, a
motion was made by the plaintiff in arrest of judgment,
which was overruled by the court, and he was sentenced
to pay a fine of twenty dollars and costs of prosecution,
and to stand committed until the sentence was complied with.
The decisions of the court in overruling the motion to
quash the indictment, in sustaining the demurrer to the
plea of a former acquittal, in denying the motion in arrest
of judgment, and in the rendition of final judgment against
the plaintiff, are assigned for error.
The law, under which the indictment is preferred, is as
follows: "If any person shall knowingly and wilfully obstruct,
resist or oppose any sheriff, deputy sheriff, coroner, consta-
ble or other officers of this State, or other persons duly author-
ized, in serving or attempting to serve any lawful process
or order of any court, judge or justice of the peace, or
any other legal officer whatsoever ; every person so offend-
ing, shall be fined in any sum not exceeding five hundred
dollars, and imprisoned for a term not exceeding one year.
The first question presented in this record relates to the
sufficiency of the indictment under the law above recited.
It is contended by the plaintiff's counsel that the indictment
is defective in not describing the manner in which the officer
was opposed, and in omitting to set out the process in the
hands of the officer in hsec verba, or in such a manner as to
show to the court, by particular description of the process
itself, that the court issuing the same had jurisdiction over
the subject matter of the suit. It would frequently be
impossible to set out in an indictment the manner in which
an officer is opposed in the execution of process, nor has any
authority been cited on the argument of this cause showing
that the law requires it. On the contrary, it has been held
that "it is not necessary, in an indictment for the obstruction
of public officers, to set forth the particular exercise of the
office in which they were engaged at the time or the par
DECEMBER TERM, 1846. 79
McQuoid v. The People.
ticular act and circumstances of obstruction. These are
properly matters of evidence." United States v. Clark, 1
Gal. C. C. R. 497. We do not disagree with the plain-
tiff's counsel, that the indictment must contain a substantial
allegation of jurisdiction in the officer who issued the pro-
cess, in the service of which the resistance or opposition is
made ; but we hold that, under our statute, the averment
that the process is a lawful one is an averment of jurisdic-
tion in the officer who issued it. The offence is charged in
the terms and language of the criminal code, and is so plain
that it can be easily understood by the jury. This is what
the statute requires, (a)
It is not to be understood, however, that this statute has
dispenced with the substantial requisities which have hitherto
entered into and composed any material portions of indict-
ments for crime. These still remain. The object was to
try defendants, who were accused, upon the facts and the
law of the case, and to reject and discard mere formalities
and technicalities. The cases of Robinson v. Harlan, 1
Scam. 237, and the State v. Tuell, 6 Blackf. 344, have been
cited as opposed j in principle to this doctrine. A close ex-
amination of these cases will show that, between them and
this opinion, on this point, there is no necessary conflict.
That of Robinson v. Harlan was a civil suit against a con-
stable for neglect of duty, in refusing to serve an execution.
The declaration neither showed nor alleged that the justice
Cff the peace, who gave the judgment and issued the execu-
tion, had jurisdiction of the subject matter for which the
judgment had been rendered, and the court, in their opinion,
say that, for aught which appears by the declaration, the
judgment might have been rendered in an action of slander.
In the case in Blackford, the court says that, " an indictment
for obstructing the execntion of a search warrant must
show the warrant to be legal ; and it must, therefore, show
that the warrant appeared upon its face, to be founded on a
sufficient affidavit. In this case, the pleader had set out the
warrant, and the affidavit upon which it had been issued, to
show its legality. Upon its face, when thus set out, it ap-
(o) U. S. vs. Mills, 7 Pet. U. S. R. 143.
80 SUPREME COURT.
McQuoid v. The People.
peared not to have been founded on a sufficient affidavit ; and
did not therefore justify the officer in its execution. The
court were satisfied from an inspection of the process, that
it was not a lawful one. There was no allegation in the in-
dictment, that it was a lawful process, and if there had been,
the indictment would still have been bad. When a process
is set out, and is upon its face manifestly illegal, an aver-
ment of its legality would not change its character in that
respect. The English precedent for indictment under
their statutes against assaults upon officers are even more gen-
eral than this indictment. They barely charge that the
officer was assaulted " in the due execution of his said office,
then and there being," without any statement whatever relative
to the manner of the execution of the office, or whether he had
or had not any writ which justified him in his conduct, leaving
all these matters to be determined by evidence upon the
trial, [a]
The gist of the offence is, resistance or opposition to the
officer while acting in his official character. That he was
an officer, and so acting, must be distinctly charged in the
indictment, and proved upon the trial. Both are matters of
fact to be determined by the evidence. There is no more
occasion for setting out in the indictment the process or order,
the execution of which was resisted or opposed, for the purpose
of showing jurisdiction than there is to copy the officer's
commission to show his official character.
The demurrer to the plaintiff 's plea was properly sustain-
ed. The plea omits to state that the offences charged in the
two indictments are one and the same offence ; in this respect
the plea is clearly defective. The demurrer only admits the
truth of the plea as pleaded.
In the last error assigned, the plaintiff contends that he is in-
jured by the judgment of the circuit court, because he
was not imprisioned as well as fined, according to the pro-
visions of the statute, under which he was convicted. If we
were satisfied that a defendant, in a criminal prosecution,
could assign for error a decision or order of the circuit court
most manifestly in his favor, we should, if we had under the
(a) Post 356.
DECEMBER TERM, 1846. 81
McQuoidv. The People.
law, the power to do so, feel inclined, upon this assignment,
to reverse the judgment and remand the cause, with directions
to that Court to proceed according to the letter of the statute,
to add imprisonment to the plaintiff's punishment. But we
are of opinion that this omission of the court to perform the
whole duty which the law requires, being in the plaintiff's
favor, and for his benefit, cannot be assigned for error. Had
the court inflicted any different punishment than that pre-
scribed by law, whether more or less advantageous to the
plaintiff, the judgment would have been erroneous. In this
case, so far as it extends, the sentence of the court pursues
the law. Properly, the plaintiff should have been imprisoned
as well as fined. No imprisonment is imposed upon the
plaintiff. It is singular, that with him it should be matter
of complaint. With the same propriety might a felon who
had been convicted and sentenced to the penitentiary, de-
mand a reversal of the judgment of court because he had
not also been sentenced to pay the costs of prosecution. We
consider the law upon this point as settled by this court,
that a defendant in a civil or criminal prosecution cannot as-
sign for error a decision, order or judgment of a court which
is manifestly in his favor. Bailey v. Campbell, 1 Scam. 47 ;
Kitchell v. Bratton, ib. 300 ; Arenz v. Reihle, ib. 340 ;
Schlencker v. Risley, 3 do. 486 ; Girard v. The People, ib.
363.
The judgment of the circuit court is affirmed with costs.
Judgment affirmed.
gill. — in — 6.
82 SUPREME COURT.
— * . _
Edgar Co. v. Mayo.
Edgar County, plaintiff in error, v. Jonathan Mayo,
defendant in error.
Error to Edgar.
A county is not liable to the clerk of the Circuit Court for his fees accruing
on a scire facias upon a recognizance, the State only being entitled to the
benefit of the sum recovered.
A suit on a recognizance is a civil proceeding, in the nature of an action on
penalty, against the accused and his bail, and if the penalty is recovered,
it cannot be regarded as a fine imposed by law,as contemplated by the pro-
visions of the one hundred and seventy first section of the Criminal Code.
This "was an agreed case, originally filed in the Edgar Cir-
cuit Court. In that Court, the present defendant in error,
its clerk, preferred a claim against the county of Edgar,
amounting to $7-93, for fees accruing to him upon two for-
feited recognizances on which the process of scire facias
had been issued by him. The agreed statement was filed De-
cember 3, 1845, and the case was heard before the Hon. Sam-
uel. H. Treat, at the May term 1846, when a judgment was
rendered for the plaintiff below for the sum above mentioned,
with the costs therein expended.
The statement will more firmly appear in the opinion of the
court.
J. Pearson, for the plaintiffs in error, cited Rev. Stat.
128, § 14; Ketchell v. Madison Co. 4 Scam. 163 ; Rowley v.
The Board of Coni'rs of Vigo Co. 2 Blackf. 355 ; United
States v. Barker, 4 Peters' Cond. R. 181 ; Duncan v. The
Scate Bank, 1 Scam. 262 ; United States v. Hooe, 1 Peters'
Cond. R.458 ; Rev. Stat. 182, § 171.
A. Lincoln, for the defendant in error.
By the common law, the defendant in error is entitled to
remuneration for his services. The county called upon him
to perform those services, and he has performed them. There
is no law of this State, which contravenes the common law.
Cases have been cited by counsel to show that the United
States never pay costs. This is not strictly true. No judgment
can be rendered against the Government, and to this poin
only do the decisions go.
DECEMBER TERM 1846 83
Edgar Co. v. Mayo.
The court is referred to the following cases as pertinent
to the present case : Bright v. The Supervisors of Chenan-
go, 18 Johns. 543 ;" Mallory v. The Supervisors of Cortland,
2 Cowen, 533 ;.The People, &c. v. Rockwell, 2 Scam. 3.
The opinion of the court was delivered by
Koerner, J.* This was an agreed case between the parties
and submitted to the decision of the court at the May term
of the Edgar Circuit Court, A. D. 1846. The Circuit Court
rendered a judgment of $7.93 in favor of Mayo, and against
the county, and by agreement, this case is brought up here
by appeal for a final decision of this court.
The agreed case is as follows: "It is hereby agreed be-
tween Elisha Houtt, George Redman and William D. Dar-
nell, County Commissioners in and for the county of Edgar,
on the behalf of the said county of Edgar, and Jonathan
Mayo, clerk of the Edgar Circuit Court, that heretofore, to
wit, on the dav of
the People of the State of Illinois, for the use of said
county, sued out of the office of the clerk of the circuit
court of said county a scire facias upon a forfeited recogni-
zance against Andrew J. Hanks, and that 6uch proceed-
ings were had thereon that the said People recovered a
judgment against" the said Hanks ; that an execution issued on
the said judgment, but no part of the debt or costs was ever
made ; that the said Jonathan Mayo, clerk as aforesaid, ren-
dered official services for and on behalf of the plaintiffs,
amounting to the sum of five dollars and eighty seven cents
according to the schedule of fees as regulated by law.
"It is further agreed between the parties, that in the case
of the People of the State of Illinois v. Enos Rawley and
others, the same proceedings were had, with this difference,
that in the last case the plaintiffs failed to recover judgment
and that the said clerk's fees, on behalf of the plaintiffs,
amounted to the sum of two dollars and six cents. It is con-
tended by the said commissioners, that the said county of
Edgar is not liable for costs in any such cases ; on the con-
* Wilson, C. J. and Justice Lockwood did not sit in this case.
84 SUPREME COURT.
Edgar Co. v. Mayo.
trary, it is insisted by the said Jonathan Mayo that he is
entitled to have and receive of the said county all costs
made by and on behalf of the plaintiffs.
" Upon this state of facts, the parties aforesaid submit this
question to the court, 'whether the said county is liable to
pay the aforesaid costs, and agree that judgment shall be
rendered accordingly."
The facts agreed upon present the question, whether the
officers of the court can claim costs from the county for ser-
vices rendered to the plaintiff in a suit on a recognizance,
■where judgment is obtained and execution awarded against
the defendant, but where nothing is made, or where the
plaintiff has been the unsuccessful party.
In order to settle this question, it is only necessary to
refer to the 105th section of the Criminal Code. Rev. Stat.
page 101, which provides, " that all recognizances, having
any relation to criminal matters, shall be taken to the People
of this State." By virtue of this law, the People of the
State of Illinois are the plaintiffs in a suit on such a recog-
nizance, and if any recovery is had, it enures to the benefit
of the State treasury. Hence it follows that in a suit of this
kind, the county can under no circumstances be made re-
sponsible for costs. It cannot be said that services have been
rendered to the county in the prosecution of a suit, from the
result of which it can derive no benefit. The rule, there-
fore, which the counsel for Mayo have insisted upon, that
each party ought to pay the costs made by their request, as
being one founded in natural justice and recognized in the
common law, can find no application here. We conceive
that section 171 of the Criminal Code, Rev. Stat. 1845,
page 182, to which we have been referred, and which pro-
vides that " all fines imposed by virtue of any laws of this
State for the punishment of crimes and misdemeanors shall,
when collected, be paid into the treasury of the county,
where the offence shall be tried, for the use of such county,"
does not embrace the present cases. A suit on a recogni-
zance is a civil proceeding, in the nature of an action on a
penalty, against the accused and his bail, and if the penalty
DECEMBER TERM, 1846. 85
Honey v. Monaghan.
is recovered, it can certainly not be said, that money so re-
covered is a fine imposed by a law for the punishment of
crimes or misdemeanors. It is true that the agreed case
states, that this proceeding on the recognizance was carried
on by the people of the State of Illinois " for the use of said
county of Edgar." But this allegation, being itself found-
ed on a misapprehension of the law, which it must be admit-
ted has been a very general one all over the State, cannot
change the real position of the parties, and fix liabilities on
one which has no interest in the suit, and cannot control it. (a)
The circuit attorney, as the people's representative, pros-
ecutes forfeited recognizances according to his own discre-
tion or sense of duty, and acknowledges no controlling power
on the part of the county officers ; he cannot, therefore, by
his acts, bind persons' or corporations who are not his prin-
cipals, but strangers to the proceeding.
We are of opinion that the court below ought to have
given judgment in favor of the county of ^Edgar. Judg-
ment is therefore reversed with costs.
Judgment reversed.
John Roney, appellant, v. Owen Monaghan, appellee.
Appeal from Lake.
"Where the evidence in an action of crim. con. taken and considered to-
gether, was of such a character as to warrant the inference drawn by the
jury that a criminal intercourse existed between the parties charged, it was
held, that the Court would not, upon an application for a new trial, dis-
turb the verdict of the jury.
Trespass on the case for crim. con. brought by the ap-
pellee against the appellant in the Lake circuit court. The
case was heard before the Hon. Hugh T. Dickey, Judge of
the Cook County Court, and a jury, at the September term
1846, when a verdict was rendered for the plaintift below
for $225 damages. A motion for a new trial was made, over-
ruled, and judgment entered upon the verdict of the jury.
(a) Laws of 1847, p. 74.
86 SUPREME COUR.T.
Roney v. Monaghan.
J. Pearson, argued for the appellant. A written argu-
ment was filed by B. S. Morris & J. J. Brown, who relied
upon the following principle of law :
Whenever there is strong probable ground to believe that
the justice of the case has not been tried fully and fairly, or
that the verdict is clearly against the weight of evidence, a
new trial should be granted. Bacon v. Brown, 1 Bibb, 386 ;
Price v. Cochran, ib. 571 ; Nahan v. Jane, 2 do. 33.
A. Lincoln, G. Spring & G.Goodrich, for the appellee.
The opinion of the court was delivered by .
Purple, J.* At the April term, A. D. 1846, of the Lake
county circuit court, Monaghan sued Roney in an action of
trespass for crim. con. The case was tried at the September
term following, and a verdict found and judgment thereon
rendered in favor of Monaghan for the sum of $225 damages.
Roney entered a motion for a new trial upon the ground that
the verdict was against law and evidence. The motion was
overruled, and Roney excepted.
The bill of exceptions contains the instructions of the
court, and the evidence in the cause. No objection appears to
have been made upon the trial, either to the instruction or
any portion of the testimony ; and from any thing which the
court have been able to discover, the testimony was perti-
nent, and instructions proper.
The only question presented by the record is, whether
upon the evidence a new trial should have been allowed.
We are of opinion that the motion was properly denied.
We deem it unnecessary to review the evidence. Taken al-
together, it is of a character to warrant the inference which
the jury has drawn, that a criminal intercourse existed be-
tween Roney and the wife of Monaghan. In such cases, a
court will never disturb the verdict of a jury.
The judgment of the circuit court is affirmed with costs.
Judgment affirmed.
*W"ilson, C. J. and justices Lockwood and Young did not sit in this case.
DECEMBER TERM 1846. 87
. i . — — 1 — . ■* —
The People v. Brown .
, — — i -f —
The People of the State of Illinois, ex rel., Daniel S.
Harris et al., v. Thomas C. Browne, Judge, &c.
Motion for a peremptory Mandamus.
Where a party to a suit in the Circuit Court takes a voluntary nonsuit, he
goes out of Court and cannot afterwards file a bill of exceptions
In this State, Courts cannot compel a plaintiff to become nonsuit, but he may
if he elect, insist upon a verdict, (a)
Motion for a peremptory mandamus to the Hon. Thomas
C. Browne, one of the Associate Justices of this court, and
presiding Justice in the Jo Daviess circuit court in the
sixth Judicial circuit. The motion was made to require
him to sign and seal a bill of exceptions taken during the
progress of the trial of a cause before him, wherein the Re-
lators were plaintiffs and John H. Rountree and others were
defendants, at the October term of the Jo Daviess circuit
court, 1852.
It appears from the transcript of the record, that a jury
was impaneled to try the above mentioned cause, and that,
upon the rulings of the court, the plaintiffs suffered a volun-
tary nonsuit. By an indorsement upon a bill of execeptions
on file in this court, it appears that during the term of court
aforesaid the same bill was presented to the presiding Judge
to be signed and sealed, which he refused to do.
An application for an alternative mandamus was made to
this court, at the Decemeber term 1842, and the writ was
granted at the December term 1843, but was not issued by
the clerk until so requested by the counsel for the Relators,
on the 28th day of August, 1846.
At the present term the Respondent made return to the
writ, and among other reasons assigned for refusing to sign
said bill of exceptions, gave the following, to wit : "He
further states that he has not signed said bill of exceptions
since the service of said writ upon him, because of the fore-
going reasons, and because of the additional reason, that the
party in the suit presenting the bill, to which the bill was
intended to belong had taken a voluntary nonsuit in the
(a) Amos vs. Sinnott, 4 Scam. B. 447, and notes.
SUPREME COURT.
The People v. Browne.
cause before presenting said bill." A motion to quash the
return, and for a peremptory mandamus was then made by
the Relators' counsel, alleging that the return was insuf-
ficient in law and not in accordance with the facts, and for
other reasons. The Court overruled the motion.
At a subsequent day of the term, the cause was submitted
by counsel.
T. Campbell, and E. B.Washburne, for the Relators.
A. Lincoln, for the defendant, cited Morehead's Pr. 251,
bottom of the page; 3 U. S. Dig. 58, title Nonsuit," § §
30, 33, 34.
Per Curiam. The motion for a peremptory writ of man-
damus is denied. The relator took a voluntary nonsuit in
the circuit court, and having voluntarily gone out of court,
he cannot call upon this court to reverse a judgment, which
was entered at his own solicitation, whether the court com-
mitted errors in the proceedings of the course previous to the
nonsuit or not. The rule seems to be different in states where
the court compels the plaintiff to become nonsuit whether
he will or not. This court has held, Amos v. Sinnott, 4 Scam.
447, that the circuit courts in this State, have no such author-
ity, but that the plaintiff may, if he choose, insist upon a ver-
dict. If the plaintiff could voluntarily take a nonsuit and
still reserve the right of excepting to the decision of the
court, he would have an unfair advantage over the defend-
ant. If he wish to assign the decisions of the court for
error, he must abide by them. The plaintiff, by taking a non-
suit, has waived his exceptions, and cannot compel the judge
to sign the bill.
Motion denied.
*Wilson, C. J. and Justice Lockwood did not sit in this case.
DECEMBER TERM, 1846. 89
State Bank v. Wilson et al.
The President, Directors and Company op the State
Bank of Illinois, plaintiffs in error, v. Thomas Wilson
et al., defendants in error.
Error to Schuyler.
A writ of error was prosecuted against three defendants. and the scire facias was
returned served on one of them onlv, and non est inventus as to the two others,
Arule was obtained upon the defendant served to join in error, and he moved
to have the rule vacated : Held, that before the plaintiffs would be entitled t°
the rule they must bring all of the defendants into Court either by the ser-
vice of the scire facias or a publication against such as were non-residents,
or could not be found.
A cause must be heard as between all of the parties to a writ of error.
In this case, Hart Fellows, one of the defendants in error,
by his counsel, 0. H. Browning and N. Bushnell, moved the
court to vacate a rule upon him to join in error, for the reason
that all of his co-defendants were not before the court. The mo-
tion was resisted by W. A. Minshall, in behalf of the plaintiffs
in error.
The opinion of the court was delivered by
Treat, J. This writ of error is prosecuted against three de-
fendants, and the scire facias has been returned, served on one
of them only, and non est inventus as to the two others. The
plaintiffs have obtained a rule on the defendant served to join
in error, which rule he now asks to have vacated. Before the
plaintiffs are entitled to a rule for joinder in error, they must
bring all of the defendants into court, either by the service of a
scire facias, or a publication against such as are non-residents, or
cannot be found. The cause must be heard as between all
of the parties to the writ of error. The motion must granted, be
and the order entered for a joinder in error will be vacated.
Motion allowed.
90 SUPREME COURT.
Curry v. Hiuman.
Beverley M. Curry, [appellant, v. William A. Hinman,
appellee.
Appeal from Schuyler.
A judgment was rendered in an action of ejectment in the Circuit Court for the
recovery of the tract of land in controversy, and for damages and costs. An
appeal was taken, and the bond recited that the judgment was rendered on a
day which was not the day on which it was in fact rendered, and that it was
for damages and costs. In the appellate Court, a motion was made to dis-
miss the appeal for the want of a sufficient bond : Held, that the bond waS
insufficient by reason of the variance.
Motion to dismiss an appeal bond for insufficiency. The
facts of the case are stated by the counsel for the appellee in
their brief.
0. H. Browning & N. Bushnell, for the appellee.
In this case Jhe judgment was entered on the 9th day of
April, 1846, for the S. W. 27, 2 N 1 W. and for one cent
damages and costs. On the 11th day of April, an order
was made granting an appeal, requiring bond to be given in
thirty days, in the penalty of $100, conditioned as the law
directs. On the 6th day of May, 1846, the bond was executed
in the penalty and with the security directed, reciting that a
judgment was recovered by Hinman against Curry on the
11th day of April, 1846, for one cent damages and costs of
suit, and conditioned for the payment of the judgment and
costs, and that Curry should duly prosecute his appeal with
effect.
The appeal should be dismissed because the judgment re-
cited in the bond is variant from the judgment appealed from,
in this, to wit :
First. The judgment appealed from was rendered on the
9th day of April, 1846, and the bond recites a judgment re-
covered on the 11th day of April, 1846 ; and
Second. The judgment appealed from was for the recov-
ery of the S(. W. 27. 2 N. 1 W. and for one cent damages
and costs, and the bond recites a judgment for one cent damages
and costs, omitting any notice of the land.
DECEMBER TERM, 1846. 91
Curry v. Hinman.
The case of Brooks v. Jacksonville, 1 Scam. 568, is relied
upon as directly in point.
W. A. Minshall, for the appellant, resisted the motion.
1. It is admitted by the counsel for the appellee that the
bond is, in every respect, in compliance with the order, except
that it did not recite that the judgement was for the possession of
a quarter section of land.
2. It is also admitted, that the bond recited a judgment on
the 11th day of April, and the record shows a judgment on the
9th day of April.
As to the firsf position, it is insisted that it was not necessary
to recite that the judgment was for land. The statute does not
require it. It only requires that the bond be conditioned for the
payment of the judgment, costs and damages, in case the judg-
ment shall be affirmed, and for the prosecution of the appeal.
Rev. Stat. 420, § 47. If the judgment is affirmed, the plaintiff
obtains possession as a matter of course ; there is no condition
in the act necessary to be inserted in the bond, requiring him to
restore possession of the land. The condition in the statute only
contemplates the recital of a judgment which can be paid. The
words of the act are, " shall be conditioned for the payment of the
the judgment." It is not, therefore, necessary or proper to re-
cite more in the bond ihan the judgment on which the condition
of the bond is based, to wit : the judgment for damages and
costs.
As to the second point that there is a variance, it is insisted
that there is no variance, for on the rendering of the judgment on
the 9th day of April, a motion for a new trial was interposed and
not disposed of till the 11th day of April, when it was overruled,
bo that the judgment, in legal effect, was suspended by the mo-
tion until the latter day, and then, when overruled, the judgment
took effect, and the party can recover on the bond because, both
in pleading and evidence, the legal effect is sufficient in the alle-
gation and proof. 3 U. S. Dig. 147 ; Dorr v. Fenno, 12 Pick.
521 ; Lent v. Paddleford, 10 Mass. 236 ; Moore v. Boswell, 5
do. 306.
92 SUPREME COURT.
Curry v. Hinman.
It is a universal rule that the party may recover on proving
the legal effect of the contract, &c. 1 Starkie's Ev. 401, 402.
The courts have departed from the strict rule in variance.
Hull v. Blaidsdell, 1 Scam. 332 ; Stevens v. Stebbins, 3 do.
25, 26.
The opinion of the court was delivered by
Treat, J. A judgment was rendered on the 9th day of April
1846, that Hinman recover of Curry the possession of a quar-
ter section of land, and one cent damages .and the costs of
the action. On the 11th of April, the court overruled a
motion interposed by Curry for a new trial, and allowed him
an appeal. The appeal bond recited the rendition of a judg-
ment on the 11th of April, 1846, for one cent damages and
costs.
The appellee now moves to dismiss the appeal, because of
the insufficiency of the bond. The motion must be granted.
The judgment was recovered on a different day than the one
stated in the bond. The judgment is not correctly recited
in the bond. It was for the recovery of a tract of land, as
well as for damages and costs. These variances might be
material in an action on the bond. The bond ought to af-
ford the appellee an effectual remedy. Brooks v. Jackson-
ville, 1 Scam. 568.
The appeal will be dismissed with costs.
Appeal dismissed.
DECEMBER TERM, 1845.
Munsell v. Temple.
Roswell Munsell, plaintiff in error, v. William H. Tem-
ple, defendant in error.
Error to Mc Lean.
A license to keep a grocery was granted by the county commissioner's cour
to A. for $25, for which he gave his note with security. Subsequently the
license was changed from A. to B. by the said court, for which charge A.
gave his note for $21.38 to the treasurer of the county : Held, that the
treasurer had no authority to take the note to himself in his official capa-
city : Held, also, that the payment of the license and the filing of the bond
required by statute in such cases were conditions precedent to the granting
of the license, and that none could be granted for a less sum than twenty
five dollars ; and that the note executed by B. was void in law
As a general rule, where the undertaking upon which a plaintiff relies was
either upon an unlawful consideration, or to do an unlawful act, the contract
is void ; and this, whether the contract be illegal as being against the rules of
the common law, or the express provisions or general policy of any particular
statute.
A license to keep a grocery is not transferable. It attaches to the person and
cannot be used by others, even with the consent of the court which granted
it.
Agreed case submitted to the Circuit Court of McLean
county, at the April term 1846, the Hon. Samuel H. Treat
presiding. Judgment for Temple, who was the plaintiff in
the court below, for $24.68.
The evidence in the case is embraced in the opinion of the
court.
A. Lincoln, for the plaintiff in error.
The note of Parke was void because the license was not
valid ; the money was not paid for it, as required by law.
Besides, it was not a license to the plaintiff, but to Parke,
and was not legally transferable. Rev. Stat. 342, § 9.
The note given by Munsell to the treasurer was also void.
He could not, in his official capacity, take a note. Berry v.
Hamby, 1 Scam. 468.
J. B. Thomas, for the defendant in error.
This case differs from that of Berry v. Hamby. In this
case, the word "treasurer" is merely discripto personoe.
94 SUPREME COURT.
Munsell v. Temple.
The note is perfect in all its parts ; it has the proper parties,
&c.
If the county commissioners exceeded their authority, the
license is not thereby void. If they give a credit, or take a
note for a license, they are personally liable. They have a
discretion in the matter.
The opinion of the court was delivered by
Koerner, J.* The parties submitted in this case, by agree-
ment, to the decision of the circuit court of McLean county,
at the April term 1846. The court rendered judgment for
Temple, the plaintiff below, in the sum of $24.68, which decir
sion is now assigned for error.
The following was the evidence produced below. The plain-
tiff read a promissory note to sustain his action, as follows:
"One day after date, I promise to pay Wiliam H. Temple,
treasurer of said county, (McLean,) twenty one dollars and
thirty eight cents, to be paid in county orders or cash, for value
received. R. Munsell.',
The defendant, by consent, read the following statement of
the county clerk as evidence :
"State of Illinois, )
McLean County. J Commissioners' Court, March term,
1843. Said court, at said term, granted to James E. Parke
a license to keep a grocery or bar in the town of Bloomington,
said grocery to be kept in the Bloomington Hotel, for which
said Parke gave a note, with security, for twenty five dollars.
And at the June term of said court, 1843, Rosewell Munsell
applied to said court to have his license changed from Parke
to him, which change was made by said court ; for which
change and transfer of license, the said Munsell gave his note
to William H. Temple, treasurer of said county, for the sum
of twenty one dollars and thirty eight cents."
The decision of the court was made upon this evidence,
and by the assignment of error the question is presented,
*"Wii-80N, C. J., and L0CKW00D, J. did not sit in this case.
DECEMBER TERM, 1846. 95
Munsell v. Temple.
whether the note so given by Munsell to Temple, for the
consideration above shown, can be collected by the plaintiff
or not.
The first objection is, that Temple, in his capacity of
treasurer, had no authority to contract, and cannot therefore
sue. In the case of Berry v. Hamby, 1 Scam. 468, it has been
decided, that the treasurer of a county has no authority what-
ever to take a note payable to himself as treasurer ; that he is
not created an artificial person in law, capable of suing as
treasurer, and that no suit can be maintained in the name of the
" treasurer." In that case, however, the note had been taken
to the "treasurer of Alexander county," and no natural person
had been named as the payee. In the present case the note is
made payable to William H. Temple, and if it were founded on
a sufficient consideration, this court would be inclined to consider
the words " treasurer of McLean county " as merely descrip-
tive of the person, and to allow William H. Temple to recover
of the defendant.
We will pass now to the question of consideration. The 9th
section of the License Act, Rev. Stat. 1845, page 342, provides
as follows: " county commissioners may grant licenses to keep
groceries upon the following conditions, to wit: First, the ap-
plicant shall pay into the county treasury, for the privilege
granted, a sum not exceeding three hundred dollars, nor less
than twenty-five dollars, in the discretion of the court. Second,
the applicant shall execute bond in the penalty of five hundred
dollars, with one or more securities, to be apporved by the court,
conditioned that the applicant shall keep an orderly house, and
so forth."
The language of this section admits of no doubt that the pay-
ment of the license, as assessed by the county commissioners'
court, and the filing of a proper bond, are conditions precedent
to the granting of a license ; and also that no license can be
legally granted for a less sum of money than twenty five
dollars.
The present case shows that Munsell obtained a license
for twenty one dollars and thirty eight cents, and also that
96 SUPREME COURT.
ZMunsell v. Temple.
he did not pay this amount into the treasury before the license
■was issued, but gave his note payable at a future day for
said sum.
As a general rule, where the undertaking upon which the
plaintiff relies, was either upon an unlawful consideration,
or to do an unlawful act, the contract is void ; and thig
whether the contract be illegal as being against the rules of
the common law, or the express provisions or general policy
of any particular statute. It is needless to cite authorities
to so well established a principle. I will give, however, one
reference, the case of Wheeler v. Russell, in the 17th Mass.
257, where there is a very full and interesting collection and
review of English and American cases upon this subject, [a]
The policy of our legislature has always been to restrain
the selling of spirituous liquors by retail. The section re-
ferred to is conceived in this spirit, and prohibits, in language
not to be misunderstood, the county commissioners from
issuing a license unless the conditions prescribed by law
have been previously complied with.
In requiring less than twenty five dollars, the county
commissioners must have acted upon the idea that licences
are transferable, and that they might be granted for the
residue of a term. But this is a mistake. Licenses attach to
the person, and cannot be used by others, even with the
consent of the court, for what remains of the annual term
for which they have been originally given.(6) It is a plain vio-
lation of the express letter of the statute to issue a license
on credit, and the undertaking of Munsell t:> pay was conse-
quently founded on a contract against the express provisions
and the general policy of the statute, and was therefore void
in law, and cannot be enforced.
The judgment of the court below is reversed with costs.
Judgment reversed.
(a) Post 473-525-Cook vs. Shipman, 24 m. R. 614 ; MarshaU Co. vs. Cook, 38 HI. R.
56 ; Bank &c. vs. Owens, 2 Pet. U. S. R. 539 ; Same vs. Wagener, 3 Pet. U. S. R. 378.
(b) Ager vs. Weston, 14 Johns. R. 231-Post 469.
DECEMBER TERM 1846. 97
Buckmaster v. Beames et al.
Nathaniel Buckmaster, for use of George. W. Denham,
plaintiff in error, v. Manning Beames et al. defendants in
error.
Error to Madison.
A plaintiff, who brought a suit for the use of another which was revoved to the
Supreme Court, made a motion in that Court founded on affidovit that the
person beneficially interested had removed from the State and was insolvent,
that the writ of error be dismissed unless he should give security lor cost:
Held,that the beneficial plaintiff had the right to prosecuite the suit in thename
of the nominal plaintifi, but that he would be required.to demnify and protect
the latter against the payment of costs. Ja)
"Where a party is required to give security for costs, and presents a bond if the
same is objected to as insufficient, it is incumbent on the party presenting it to
satisfy the Court by competent proofs that it is sufficient.
In this cause a motion was made to dismiss the writ of error,
unless the beneficial plaintiff should indemnify the nominal plain-
tiff against the costs of the suit. The affidavit, upon which the
motion was founded, is substantially stated in the opinion of the
court sustaining the motion. It was argued on behalf of the
nominal plaintiff by J. Gillespie, counsel for the defendants in
error, and resisted by L. Trumbull and J. B. Thomas, counsel
for the beneficial plaintiff in error.
The opinion of the court was delivered by
Treat, J.* This suit was originally instituted in the name
of Buckmaster for the exclusive benefit of Denham,
on a bond made payable to the former, for the use of the latter.
Failing to recover in the court below, Denham prosecutes a writ
of error to this court in the name of Buckmaster. Buckmaster
now files his affidavit, alleging that Denham resides out of the
State and is insolvent, and moves the court to dismiss the writ
of error unless Denham shall give security for costs. The ap-
plication will be allowed. Denham has the right to prosecute in
the name of Buckmaster, but he is bound to indemnify and pro-
tect him against the payment of costs. A rule will be entered
. (a) Young vs. CampbeU, 4 Gil. R. 157.
• Young, J. did not sit in the case
GIL. Ill — 7.
98 SUPREME COURT.
Buckrnaster v. Beanies et al.
requiring Denhani to show cause why he shall not give security
for costs, and unless cause is shown, or security given, the writ
of error will be dismissed.
Motion allowed.
At a subsequent day of the term, the beneficial plaintiff, in
compliance with the foregoing order of court, filed a bond for
costs, which was objected to by Gillespie, for the defendants in
error, who asked that the plaintiff might be required to show
that the bond was a sufficient indemnity to Buckrnaster. The
point was taken under advisement.
The following opinion was delivered by
Treat, J. At the instance of Buckrnaster, the nominal
plaintiff in this writ of error, a rule was granted on a former
day of this term, requiring Denham, the beneficial plaintiff, to
shew cause why he should not give security for costs. In answer
to the rule, he now presents a bond for costs, which is objected to
by Buckrnaster. No proof has been introduced by either party
as to the responsibility of the person executing it. Must the
party offering the bond show its sufficiency, or must the one ob-
jecting to it shew its insufficiency ? The question is one of easy
solution. Denham, having failed to shew cause against the rule,
is bound to give good security for costs. This is an affirmative
act on his part. If the security tendered is objected to, it is
then incumbent on him to satisfy the court, by competent proof,
that it is sufficient to indemnify Buckrnaster against the payment
of costs. He has knowledge of the pecuniary circumstances of
his surety, and if they are adequate, he can readily produce the
proof. The other party is not presumed to know any thing re-
respecting them, and may therefore require him to make the
proof. The bond will be rejected and the writ of error dis-
missed, unless satisfactory proof is presented of the responsi-
bility of the person signing it, or other security is given.
Rule 7iisi.
DECEMBER TERM, 1846. 99
Kenyon v. Sutherland.
A biel Kenyon, plaintiff in error, v. Mason Sutherland,
defendant in error.
Error to Cook.
Accord and satisfaction must be specially pleaded in an action ol trespass, and
cannot be given in evidence uDder the general issue.
The reading of an improper paper by counsel in the agreement of a cause
cannot be assigned for error. The opposite counsel, in such case, should
request the Court to instruct the jury, that nothing which was said or
read by counsel in his argument was evidence before them.
There is a distinction between a plea setting up matter of defence, which has
arisen since the commencemeut of the action but before plea pleaded,
and pleas alleging matters defence, originating after plea pleaded. A
plea of the former kind is not, properly speaking, a plea of puis darrein
continuance. Such a plea differs from a plea in bar in this only, that it
cannot destroy the original cause of action, and cannot be pleaded in bar
generally, but must be pleaded to the iurther maintenance of the suit.
Trespass quare clausum fregit, in the Cook circuit
court, brought by the defendant in error against the plaintiff
in error, and heard before the Hon. Richard M. Young and a
jury, at the March term 1844, when a verdict and judgment
was rendered in favor of the plaintiff below for the sum of
$33.40.
The various proceedings in the case are stated in the
opinion of the court. The case was submitted on briefs and
written arguments.
H. Brown, for the plaintiff in error, made the following
points :
I. The court erred in striking the notice of special mat-
ter from the files of the court, on account of its being
inconsistent with the plea of the general issue. Rev.
Stat. 415, § 14.
II. The court erred in sustaining the demurrer to the
defendant's plea of puis darrein continuance.
III. The court erred in excluding evidence of settle-
ment.
IV. The court errer in permitting the plaintiff's coun-
sel below to read the affidavit of George Cook, in his
argument to the jury.
100 SUPREME COURT.
Keuyonv. Sutherland.
V. The court erred in refusing a new trial.
It appears conclusively from the case, that after the com-
mencement of the suit, the whole matter in controversy was
settled by the defendant giving his note for $17, with secu-
rity, which was accepted and received by the plaintiff below
in full satisfaction of damages and costs, and the suit was to
be dismissed. This fact being stated in the plea, and admit-
ted by the demurrer, authorities on behalf of the defendant
below are entirely superfluous. The above facts were plead-
ed by a special notice in the first plaee ; they were repeated
in the plea of puis darrein continuance ; they were after-
wards offered in proof on the trial, and a motion for a re-
hearing made and refused; The defendant below was not,
therefore, guilty of laches.
I. N. Arnold, and B. S. Morris, for the defendant in error.
I. The first error assigned is, that the notice attached to
defendant's plea should not have been stricken from the files.
In reply to this we may say :
First, The notice was insufficient, and therefore properly
stricken from the files ; and
Second, The notice was waived by the subsequent plea.
The objection to the plea was in the nature of a demurrer to
a plea. On sustaining the objection to the notice, defend-
ant could elect to stand by the notice, or plead over. He
did plead over, and thereby waived the notice. He could not
stand by the notice and still plead over.
II. The second error assigned is the sustaining the de-
murrer to the defendant's plea of puis darrein continuance.
The demurrer was rightfully sustained. The plea was bad.
It alleges that the suit was settled, &c, on the 7th Novem-
ber, 1842. The plea of general issue was filed on the first
day of April, 1843. The motion to strike the notice from the
files was granted in March, 1844. In Ross v. Nesbit, 2
Oilman, on page 257, the court say: Such a plea (a plea
puis darrein continuance) must show facts happening after
the last continuance, and not before it."
This plea sets forth facts alleged before the plea of the
general issue was ever filed. It is clearly bad as a plea of
DECEMBER TERM, 1846. 101
Kenyon v. Sutherland.
puis darrein continuance. The plea to which the demurrer
was sustained is also objectionable on the ground of its being
double. It purports to be a plea in bar, but closes as a plea
in abatement.
III. The third error assigned is not well taken, because
evidence of a settlement is not competent under the plea of
" not guilty."
IV. The affidavit of Cook was read, if at all by counsel,
as a pare of his argument, and not as evidence, and merely
as an offset to the reading (very improperly) of the plea
sworn to, to which a demurrer had been sustained. Neither,
perhaps, can be assigned as error, and both were, perhaps,
equally improper.
The opinion of the court was delivered by
Koerner, J.* In March, 1812, Sutherland, the plaintiff
below, commenced an action of trespass against Kenyon, de-
fendant below in the Cook circuit court, and filed his de-
claration to the May term, 1842, of said court. No further
steps appear to have been taken by the parties until the
March term, 1843, when the defendant Kenyon, filed his
plea, of general issue, -and also a notice to plaintifi, in which
he sets forth, as a special matter of defence, that after the
commencement of the suit, the subject matter thereof was
settled between the said plaintiff aDd defendant ; that on
the 7th day of November, 1842, the defendant gave the
plaintiff his note with security, for $17, payable thereafter,
which the said plaintiff accepted and received in full satis-
faction and discharge of the damages and costs in this suit,
and that plaintiff, in consideration of its receipt, agreed to
dismiss the suit and pay the costs.
No further proceedings were had in said case, it never
having been reached on the docket, as the record states,
until at the March term 1844, when the plaintiff made a
motion to strike the notice and plea accompanying it from
* "Wilsox, C. J. and Justice Lockwood and Young took no part in the de-
cision of this case.
102 SUPREME COURT.
Kenyon v. Sutherland.
the files, which motion was allowed, to which decision the
defendant excepted.
By leave of the court, the defendant then at the same
term filed by a plea of puis darrein continuance, as it is called
by him, and as it seems to have been treated by the court,
against the plaintiff's further^ maintenance of the action,
which plea sets out the same matter more precisely, which
is insisted upon as a defence in the notice, concluding with
a verification and which plea was sworn to by the defendant.
The plaintiff filed a general demurrer to this plea, which
was sustained by the court.
The parties then went to trial under the general issue, as
the record shows, although it previously stated that the said
plea was stricken from the files. But we presume that there
was a clerical mistake in entering up the first order. On
the trial the defendant's counsel asked a witness the ques-
tion, if the subject matter in the suit had not been settled by
the parties, which question was objected to, and the objec-
tion sustained.
The bill of exceptions also notices that defendant's counsel
objected to the reading of a certain affidavit by the plaintiff's
counsel, when he argued the case, which objection was over-
ruled by the court. The jury found a verdict in plaintiff's
favor, whereupon defendant moved tfor a new trial, upon an
affidavit, which however is not contained in the record,
which motion was overruled, and judgment rendered for
plaintiff according to the verdict.
The errors assigned are :
1st. The court erred in striking - the defendant's notice
from the files ;
2d. In sustaining plaintiffs demurrer to the defendant's
plea of puis darrein continuance ;
3d. Rejecting defendant's evidence, tending to show a
settlement of the suit ; and
4th. In overruling the- motion for a new trial, and allow-
ing plaintiff's counsel to read the affidavit of Cook in the
argument.
The third error is not well assigned. Accord and satisfac-
DECEMBER TERM, 1846. 103
Kenyon v. Sutherland.
tion must be specially pleaded in an action of trespass, and
cannot be giyen in evidence under the general issue, which
was the only issue remaining before the jury. 1 Chitty's
PI. 545.
The fourth error is also, not well assigned. Nothing ap-
pears on the record which would have justified the granting
of a new trial, none of the affidavits which are mentioned in
the bill of exceptions appearing of record. We think, how-
ever, that the reading of an improper paper ; by counsel in
the argument of a cause can never be assigned as error. If
the defendant had thought himself prejudiced by such a
course, the court would certainly, upon his motion, have
instructed the jury that nothing' was evidence before them,
which was either said or read by counsel in his argument.
I will now pass to the points presented by the assignment
of the other errors.
It is unnecessary, under the view which we take of this
case, to consider whether by the filing of the plea, called a
plea puis darrein continuance, the defendant waived his ex-
ception to the decision of the court in striking the notice
from the files. We are of opinion that the plea itself was a
good one, and that the general demurrer to it ought to have
been overruled. As a plea of puis darrein continuance it
was objectionable, because it set forth matter of defence,
which arose before the last continuance, and before plea
pleaded. Ross v. Nesbit, 2 Gilman, 253. According to the
imperfect record before us, the defendant did not file any
plea in the case before the March term, 1843, while his plea
alleges accord and satisfaction in November, 1842. The
cause was never called after general issue and notice filed,
until the March term, 1844, when the notice was decided
to be insufficient, and the defendant immediately filed his plea.
There is a distinction between a plea setting up matter of
defence, which has arisen since the commencement of the
action but before pleaded, and pleas alleging matter of de-
fence originating after plea pleaded. A plea of the former
kind is not properly speaking, a plea of puis darrein continu-
ance. Such a plea differs from a plea in bar in this only
104 SUPREME COURT.
Kenyou v Sutherland.
that it cannot destroy the original cause of action, and can-
not be pleaded in bar generally, but must be pleaded to the
further maintainance of the suit. 1 Chitty's PL 696.
The plea in question, it will be perceived, goes only to the
further maintainance of the plaintiff's action, for matter oc-
curring since the action -was commenced and before plea plea-
ded. The defendant, at the earliest stage of his pleading,
set up his defence under the notice, and as soon as this notice
was ruled out, he embodied the same defence in his plea.
This plea, being a substitute for the notice, must be considered
in contemplation of law as having been filed together with the
general issue. In fact whenever amended pleadings are filed,
they must be considered as having been filed in point of time,
when the original pleadings were filed.
Eroni the very nature of the case, the defendant could never
have made his defence in a plea of puis darrein continuance,
as the settlement between the parties was made before the
record showed the last continuance, or before there was any
plea pleaded. Shall he lose his defence by misnaming his
plea ? We think not. It contains all the averments necessary
in a plea which goes only to the further maintainance of the
suit ; and also sufficient to show accord and satisfaction.
5 Johns. 390, and authority there cited. 1 Inst. 212. The
plea is substantially good as a plea to the further maintainance
of the action, though not as one of puis darrein continuance.
On special demurrer it would have been objectionable for
the reason that it was contradictory, which arose from the
fact that the pleader intended it for a plea since the last con-
tinuance.
The plaintiff might have objected to this plea, as not having
been filed in compliance with the order of the court, which al-
lowed him to file a plea puis darrein only. But having joined
issue on the plea, by demurring he waived this objection.
The demurrer ought to have been overruled. Judgment must
be reversed, with costs, and cause remanded for further pro-
ceeding.
Judgment reversed.
DECEMBER TERM, 1846. 105
Hector v. Rector et al.
Henry Rector, who sues by his guardian, Stephen Triggs,
plaintiff in error, v. Lydia Rector et al. , defendants in
error.
Error to Alexander.
Although, as a general rule, it is not licensable, on account of the multiplicity
of irrelevant and improper issues which would thereby be presented; to
attack the general character of an impreaching witness, yet it is proper
and highly important for the purposes of justice that a Court or jury trying
a cause should know whether such, as well as any other witness, is in-
capacitated from giving testimony on account of mental alienation,
without regard to the causes by which it may have been produced.
In the absence of any positive provision of law to the contrary, an infant will
not be prejudiced or injured by lapse of time.
The general rule is, that the answer of one co-defendant in Chancery shall
not be evidence against another ; but to this rule there are exceptions.
When such defendants are partners, or when one has acted as the other in
any transaction to which the answer may relate, and the agency or partner-
ship at the time ot filing such answer still exist, the answer of the partner
will be evidence against his copartner, and that of the agent against
his principal, when such copartner or principal claims'through or under
such agent or partner.
Alter a long period has elapsed, Courts will be cautious in enforcing the spe-
cific performance of a contract where there is any real doubt about its
existence and its terms ; and specially when the contract is lost or destoy-
eU, it should be made satisfactorily to appear what were the substantial
condition and covenants which are sought to be enforced .
The presumption of innocence maybe overthrown, and a presumption of
guilt be raised by the misconduct of a party in suppressing or destroying
evidence which he ought to produce, or to which the other party is entitled
The rale is, when a party refuses to produce books and papers, his opponent
may give secondary or parol proof of their contents, if they are shown to
be in the possession ofthe opposite party ; and if such secondary evidence
is imperfect, vague and uncertain as to dates, sums, boundaries, &c.
every intendment and presumption shall be against the party who might
remove all doubt by producing the higher evidence.
Bill in Chancery, in the Alexander Circuit Court, filed by the
plaintiff in error against the defendants in error, and heard before
the Hon. Walter B. Scates at the October term 1842. The
bill was dismissed for want of equity.
106 SUPREME COURT.
Kector v. Rector etal.
The substance of the bill appears in the opinion of the
court.
S. T. Logan, and A. T. ^Bledsoe, for the plaintiff in error.
I. Though the complainant's bill was founded on a lost
instrument, it was not necessary to file an affidavit of loss.
The rule which requires an affidavit of loss to be filed,
applies only to cases in which, if the instrument had not been
lost, a complete remedy might have been had upon it at law.
3 Barb. & Har. Dig. 40, 41 ; Story's Ed. Jur. § § 477-8 ; 2
Bibb, 558.
II. As the bond hTquestion is proved to have been in
possession of defendant, and there is some proof of the con-
tents thereof, so it is to [be taken most strongly against him.
The court will presume that it contained everything which
such bonds usually contain, and which can be in favor of
complainant. 1 Stra. 505 ; 1 Camp. 8 ; Life & Eire Ins. Co.
v. Mech. Ins. Co. 7 Wend. 31 ; 1 Greenleaf's Ev. 43.
III. Notice to agent is notice to principal. 2 Powell on
Mort. 581-6 ; 3 Atk. 646 ; Fomb.^Eq. 420 : Prin. & Agent 283;
Story on agency, 131, § 140.
IV. Every artifice or device by which a man is design-
edly deprived of his right to fraud ; and a court of equity
will afford relief. 2 Vesey, 155 ; Story's Eq. Jur. § § 187-8,
192, 254.
D. J. Baker, for the defendants in error.
A decree for a specific performance of a contract for the
conveyance of land was refused, because a certain and defi-
nite contract was not made out, &c. Carr v. Ehival, 10
Peters, 77.
A court of equity will not enforce a specific performance
of a contract as between the original parties, unless its terms
are clear, definite and positive ; and a fortiori, when the
specific performance is sought to be enforced against an as-
signee. Kendall v. Almy 2 Sumner, 298 ; 1 Peters' Dig.
471, § 448 ; Colson v. Thompson, 3 Conn. 143.
The discretion of the court in granting or refusing a spe-
DECEMBER TERM, 1846. 107
Rector v. Rector et al.
cific execution is regulated by established principles. Revel
v. Hussey, 2 Ball & Beatty, 288.
To obtain a specific performance, the case should be clear
of doubt. Hammond's Dig., 16 ; 2 Scho. & Lef. 7 ; ib. 549.
A bill for a specific performance is an application to the
discretion, or extraordinary jurisdiction of the court, which
cannot be exercised in favor of persons who have slept upon
their rights, or have acquiesced for a long time in a title or
possession adverse. 1 Ball & Beatty, 69.
A party seeking to disturb another in the possession of the
legal title ought to show a clear equity. Rucker v. Howard
2 Bibb, 268.
To authorize a decree enforcing a contract, the agreement
should be complete in all its parts. 3 A. K. Marsh. 400,
445 ; 1 Wash. 290 ; 3 J. J. Marsh. 546.
A mere gratuity will not be enforced in equity. 3 A. K.
Marsh. 436.
Equity will not enforce a contract specifically, which, by
subsequent events, will impose great loss or hardship on the
defendant, but will leave the party to his remedy at law. 4
Littell, 398.
The power of the Chancellor to enforce specific perform-
ance is one exercised, not on every occasion, but is guided
by legal discretion, and does not belong, as of right, to every
meritorious contract. As a general rule, the Chancellor
will not interfere with a party's remedy at law upon a breach
of contract for conveyance, unless there are circumstances
calculated to make it an exception. Caldwell's Heirs v.
White, 4 Monroe, 567.
A bill for specific performance if addressed to the discre-
tion of the court. Gilman's Dig. 131 ; 3 Blackf. 273.
After a long delay and laches, a court of equity will not
decree a specific performance ; especially where there has
been a material change of circumstances and injury to the
other party. A fortiori, it will not decree against purcha-
sers, even with notice, if their vendor is dead and insolvent,
so that they can have no remedy over. 5 Mason, 244.
108 SUPREME COURT.
Rector v. Rector et al.
The opinion of the court was ^delivered by
Purple, J.* On the 8th day of May, A. D. 1834, the
plaintiff in error filed his bill in Chancery in the Alexander
circuit court, complaining that Elias Rector, in his life-
time, contracted with Stephen Rector for the purchase of
one half of fractional section No. 27, in township 15 south, of
range 1 east, of the third principal meridian in the said
county of Alexander. That the price for which the parties
contracted was unknown, but the purchase money was fully
paid. That Stephen Rector executed his bond to Elias
Rector, covenanting therein to convev the same to said
Elias by general warranty, as soon as he should receive a
patent therefor from the United States ; he, Stephen, at the
time only claiming a right to the land by virtue of a certificate
of entry and purchase from the United States, which showed
that one fourth of the purchase money due on the land
($309.56) only had been paid. That Stephen was to pay the
residue of the purchase money. That tStephen died, not
having performed the conditions and covenants of his bond.
That Lydia Rector, his widow, became his administratrix.
That Elias died also before any deed for said land had been
made to him, leaving Henry Rector, the plaintiff, his sole
heir. That William Rector administered on Elias' estate,
died, and administration de bonis non was granted to Ste-
phen Triggs. That Stephen Rector, in his lifetime, and his
administratrix after his death, had failed to pay to the United
States the balance of the purchase money due on the land.
That Lydia Rector, although notified of the -bond and cove-
nants made by Stephen, her husband, sold and transferred
the certificate of purchase for the land to John Skiles, or to
him and one James Riddle, who were thereby enabled to
obtain a patent for the same, and hold it in their own names.
That the said Lydia, together with Stephen, George K. and
Thomas C. Rector, had combined and confederated with
John Skiles and James Riddle to defraud the plaintiff, and
•YouxG, J. did not sit in this case.
DECEMBER TERM, 1846. 109
Rector v. Rector et al.
that they have refused, and still refuse to make him a deed
for the land so purchased by the said plaintiff's ancestor,
Elias Rector. That Skiles and Riddle, or one of them, pur-
chased the said certificate of Lydia Rector "with full notice
of the bond and covenants made by Stephen to and with
Elias Rector ; and that Skiles has paid the balance of the
purchase money for the land to the United States, with full
knowledge of the plaintiff's claim. That the bond has been
lost or mislaid, so that the same cannot be produced. That
James Riddle had died, leaving Esther Riddle his executrix,
and Mary, James, Henry D., Esther, Charles K. and Mar-
garet J. Riddle his heirs at law.
The bill concludes with a prayer for a conveyance from
John Skiles and the heirs of Stephen Rector and James Rid-
dle, of the undivided half of the land before described, to the
plaintiff, and for general relief.
The answer of John Skiles, filed on the 4th day of No-
vember, A. D. 1834, states, that the land was entered by
Stephen Rector at the land office in Shawneetown, on the
10th day of May, A. D. 1816, one fourth of the purchase
money, $309.56, having been paid at the time of such entry.
That on the 17th day of September, 1821, Stephen Rector
obtained from the land office a certificate of further credit
on the same, by which payments were to be made in eight
annual instalments, commencing on the 31st day of March,
A. D. 1822. That Stephen Rector died insolvent, having
made no further payment on the land. That Lydia Rector
was appointed his administratrix, and that on the 9th day of
June, 1828, she, as administratrix, by deed sold, transferred,
and conveyed the said certificate of every entry and purchase to
the said John Skiles, for the sum of $530.87. That in De-
cember, 1828, he lost the certificate, and after due notice
procured a duplicate thereof from the land office, and
about the same time, he paid the residue of the purchase
money due on the land, which, after deducting the amount
originally paid by Stephen Rector, was $580.42, and on the
12th January, 1831, after due proof of the transfer of the
certificate, obtained a patent for the land in his own name.
110 SUPREME COURT.
Rector v. Eector et al.
That James Riddle furnished a portion of the purchase money
and after he had procured the patent he deeded to Riddle
one half of the land, pursuant to a prior agreement with him.
That he knows of no bond from Stephen to Elias Rector, as
stated in the bill, and calls for the proof. If there ever was
such a bond, he admits that it was made when Stephen had
paid only one fourth of the purchase money on the land.
That Stephen paid $309.56, and died without performing the
covenants in the bond, if it existed ; but he has no knowledge
whether or not Stephen was to pay the residue of said pur-
chase money. He denies that at any time before he purcha-
sed from Lydia Rector, or before he made the final payment
to the land office, he had any knowledge of the existence of
any such bond, or that he made the purchase with any design
to defraud the plaintiff. Admits that Elias Rector died some
ten years since, but does not know, who are his adminis-
trator or heirs, and requires proof. Admits that Lydia,
administratrix of Stephen, never paid the residue of the
purchase money for the land. Does not know whether she
had notice of the bond to Elias before she sold the certifi-
cate, and requires proof. That he has no knowledge who
are the heirs of Stephen Rector.
The heirs of Stephen Rector and James Riddle, by their
guardian ad litem, Wilson Able, answer generally that they
are strangers to the matters charged in the bill.
There is no amendment or supplement filed to the original
bill, suggesting the death of John Skiles, but James Skiles,
Robert King and Jane his wife, Abraham S. Latta and Eliza-
beth his wife answer and admit that James Skiles is the son,
and Jane King and Elizabeth Latta are sisters of John
Skiles deceased, and his sole heirs ; and state that they are
strangers to all the matters stated in the bill, except that they
have heard that John Skiles purchased the land, and in good
faith obtained a patent therefor from the United States, and
require strict proof. They refer to, and rely upon the
answer of John Skiles.
The plaintiff filed a general replication to the answers.
By the depositions taken in the cause, the complainant
DECEMBER TERM, 1846. Ill
Rector v. Rector et al.
below, proved by Joseph Garnein, that Henry Rector is the
son and only heir of Elias Rector deceased, that he believes
Skiles paid Lydia Rector $400, or $500, for the certificate of
purchase, and that Stephen Rector was insolvent at the time
of his death.
By Augustus H. Evans, that in September, 1822, he made
an inventory of Elias Rector 's papers at the house where he
died, and recorded such inventory in a book. That among
these papers was a bond, executed by Stephen Rector to
Elias Rector, for one half of fractional section, number
twenty seven, township fifteen south, range one east, third
principal meridian. That he is enabled to make this state-
ment from the circumstances that a list of said Rector 's
papers appears on file in the county clerk 's office, in the
hand writing of John H. Langham, and he recollects that
Langham made the copy of the list from his book above
mentioned, and further, that in 1825 or 1826, a gentleman
came from Kentucky, who wanted to purchase said land.
That he, witness, went to see Rector (Stephen,) and that he,
(Stephen,) then told him he did not own the land, that his
Brother and one Barcroft owned the most, if not all of it,
but that Barcroft should never have any of it. That after
Stephen Rector 's death in 1826 or 1827, in a conversation
with Mrs. Rector, his widow, he told her of all the circum-
stances of the sale made by her husband to his brother Elias.
He does not remember whether or not the bond expressed
that it was made for a valuable consideration, but is of
opinion it conveyed all the right of Stephen Rector to one half
the land, when the same should have been paid for by said
Stephen. He believed the bond acknowledged the receipt of
the consideration money. That Henry Rector is the sole
heir of Elias Rector, deceased.
By U. S. Hults, that some time between August and
October, 1833, Skiles in a conversation with witness about
valuable tracts of land on the river, informed him that Mr.
Webb owned the Caledonia tract, and that he (Skiles) and
the Heirs of James Riddle owned the adjoining tract on the
north, bounding on the Ohio river. That he expressed sur-
112 SUPREME COURT.
Rector v. Rector et al.
prise that Webb had not purchased said last mentioned tract
before Skiles did, as he (Webb) had been a long time in the
country. That Skiles stated that Webb and others were
afraid to purchase, owing to the existence of a certain title
bond. That when he (Skiles) came on, he shortly found out
that he could make a safe purchase. That he had been to
St. Louis, and there ascertained that the bond was lost and
would never be'1 found. That this was a bond given for this
tract of land. That he then made the purchase of the widow
for one half the said land. That then he went to Shawnee-
town to get the certificate in his own name. That he had
made also the purchase of the other half. That he gave a
certain sum for the land, the amount not recollected, and
that he gave Mrs. Lydia Rector $50.00 for her right. That
he inquired of Skiles if they would not be on him about the
bond he had mentioned. That Skiles replied, "How can
they when I have the patent from the United States ?"
That in the course of the conversation Skiles said that he
understood that the bond which was said to have been given
by Stephen to Elias Rector had been lost. That he under-
stood from him that it had been lost previous to his purchase
of the widow Rector, and about the time of the death of Elias
Rector. That he never heard Skiles say he had seen or
had any personal knowledge of the bond except from informa-
tion.
By Henry L. Webb, that in May, 1820, there was a sale
of town lots at America ; Stephen and Elias Rector were
present, and while there Elias proposed selling section twenty
seven, in township fifteen north, range one east, third prin-
cipal meridian, to Doct. Wm. Alexander and witness, at $4
per acre. That under this proposition, if they purchased
they were to pay the residue of the purchase money, one
payment of fifty cents per acre having been made, which
would have made the land cost them $5.50 per acre. That
he understood from both Stephen and Elias that the land was
their joint property.
By James S. Smith, that in 1828 or 1829, having become
acquainted with John Skiles, and having had frequent conver-
DECEMBER TERM, 1846. 113
Rector v. Rector, et al.
sations with him in relation to land in the neighborhood,
he, witness, mentioned to him, Skiles, section twenty seven,
and told him the situation of! the land. That Stephen Rector
had executed to Elias Rector, a bond for a part of it. That
Elias was dead, and there would be no difficulty in procuring
the land, provided he could obtain the part held by Elias
Rector's heirs. That in consequence of this information,
Skiles went to St Louis, and on his return, informed the
witness, that he had got on a track for obtaining the bond.
That he could obtain it from the widow of Stephen Rector ;
at this time there was some conversation about the loss of
the certificate of entry. That Skiles made three journeys to
St. Louis, before he completed the purchase. That upon
witness inquiring of him about the claim of Elias Rector's
heirs, he replied, that he had got the bond. That he had
headed the boys. That the bond was no longer in their pos-
session, nor ever would be again. At this time he held a
paper in his hand, shaking it towards witness, remarking as
above stated. That he, witness, did not read the paper.
That he had alwavs understood that James Riddle was interested
with Skiles in the purchase. That one day Riddle told
him he was dissatisfied with Skiles' conduct towards him.
Afterwards he heard Riddle inquire of Skiles for the bond
from Rector for one half the land in question. Skiles at each
time refused to show it ; Riddle was irritated. That after
one interview, Skiles said to a witness that he did not know
that Riddle had any more right than others to see the bond.
That no one should see it ; and that at another time when
Skiles had refused to let Riddle see the bond, Riddle said he
would have no responsibility in the purchase from Mrs.
Rector. That they, Skiles and Riddle, would divide the lots
and land, and Skiles must take the responsibility of that
purchase and do as he could with it. That Skiles gave several
reasons for the title papers being taken in his name first.
That Riddle was not then a resident of the State, and had
not then been consulted on the subject. That he might
never come to the State t > reside, and was pecuniarily em-
barrassed. That perhaps the cause that Skiles conveyed to
gil. in. — 8
114 SUPREME COURT.
Rector v. Rector et al.
Riddle with waranty, was on account of Riddle's objection
to the manner of obtaining the part of the land claimed under
the bond to Elias Rector. That he never saw the deed to
Riddle, and never heard Barcroft's name mentioned in any
of the conversations.
William Price, a witness for the defendants, stated that
he once saw a bond from Stephen Rector to Elias Barcroft.
Cyrus Lynch and Nichols Smith testified, on the part
of the defendants, that they would not believe U. S. Hults
under oath.
Jesse Echols stated that he thought Skiles purchased the
land he lived on about 1828. That he understood the same
had before that time belonged to Stephen Rector.
Joseph W. Echols stated, that while Smith lived with
Skiles, he heard Skiles speak about a bond to Barcroft ; that
he never heard him speak of one to Elias Rector.
Eli B. Clemson, for plaintiff, . stated that Skiles had great
influence over Nicholas Smith and Cyrus S. Lynch. That
Nicholas Smith was a very intemperate man, and his intel-
lect in his opinion, impaired by drink. That he should dis-
credit his testimony when Skiles was a party. That he
had a good opinion of Hults, and would credit his testimony.
Henry L. Webb stated that Nicholas Smith was intempe-
rate and vindictive, and his character bad. That he had
known Hults for some years, and should have implicit
confidence in his word or testimony. That at the time
Skiles made the purchase of Mrs. Rector, it was generally
known in the neighborhood that Capt. Spotts had declined to
purchase the land, on account of the claim of Elias Rector's
heirs.
William Echols stated that Nichols Smith was intempe-
rate. That he died in the fall of 1838. That his testimony
could not be relied upon, when he or his friends were
interested.
Considerable other testimony is introduced into the record,
but most, if not all of it, is hearsay, irrelevant and unimportant
in its character.
DECEMBER TERM, 1846. 115
Rector v. Rector, et al.
The most important questions involved in this case are
questions of fact merely.
The first is, in relation to the existence of the bond set
forth in the bill of complaint.
The solution of this question depends upon the testimony
of Evans, Hults and Smith. That such a bond might have
existed, is, not positively denied by any of the defendants. It-
is a matter about which they could not answer by direct de-
nial, or in such manner as to render it necessary to disprove
the answer by the testimony of more than one witness.
Evans distinctly states, that he saw a bond executed by
Stephen to Elias Rector, for one half of the land in controversy,
in September, 1822. This bond was then, which was subse-
quent to Elias Rector's death, among his papers. The
witness believed it acknowledged the receipt of the consid-
eration money, and conveyed all the right of Stephen to one
half the land, when the same should have been paid for by
Stephen. This testimony alone, uncontradicted and unim-
peached, as it is, is sufficient to prove the existence of sub-
stantially such a contract as the complainant's bill describes.
That the consideration money had been paid, is properly
inferred from the admission of Stephen Rector to Webb and
Evans, at a time when he had no interest to misrepresent
the facts. The admission in substance is, that one half the
land belonged to Elias Rector. Add to this the statements
of Skiles to the witnesses Hults and Smith, and if the wit-
nesses are credible, every reasonable doubt must be removed.
The next question of fact to be determined is, had Skiles,
at the time he purchased the certificate of entry of Mrs.
Rector, Stephens administratrix, notice of the existence
and conditions of this bond ? This, in his answer, he most
positively denies. His answer must be considered as true
unless disproved by two witnesses, or by one witness and
corroborating circumstances.
We think the evidence justifies the conclusion, that in
this respect, his answer is untrue. According to the state-
ment of Smith, he was the first to give Skiles information
relative to the situation of the land : and at the same time he
116 SUPREME COURT.
Rector v. Rector et al.
told Skiles of the claim of Elias Rector's heirs to a portion
of the tract. Skiles acted upon this information, went
several times to St. Louis, and finally, as he admits, got pos-
session of the bond. Substantially the same facts testified
to by Smith are related by Hults, as having been detailed
to him by Skiles. That in 1833, Skiles told him, that when
he first came to the country, he ascertained that Webb and
others were afraid to purchase the land, on account of the
claim of Elias Rector's heirs. That he (Skiles) went to St.
Louis, and ascertained that the bond to Elias Rector had
been lost, and that he could safely make a purchase of the
land ; that he then purchased of the widow Rector one half,
and of some other persons the other half of said tract.
Skiles cross-examined this witness himself, and in that
examination asked him, if he had heard him say that he had
ever seen, or had any personal knowledge of the bond ; and
did not by any interrogatory, or otherwise, so far as this
record shows, intimate that the bond to Barcroft, or to any
other person than Elias Rector, was the subject matter of
the conversation ; nor can any reasonable inference be drawn
from any of the testimony, that these conversations and ad-
missions had reference to any other bond.
Webb also testifies, that at the time Skiles purchased, it
was generally known in the neighborhood that Elias Rectors
heirs had a claim to the land. This circumstance alone
would not conclude the defendant Skiles upon this point ;
but in connection with the other evidence, it tends to estab-
lish his knowledge of the plaintiff's equity. Hults and Smith
are sustained by each other in almost every material portion
of their testimony bearing upon this question. Either their
evidence, or the answer of defendant Skiles must be dis-
credited. They are not susceptible of reconciliation. The
law attaches greater weight and importance to the former,
and leaves us no alternative but to declare that the^ latter is
disproved.
An unsuccesful effort is made to impeach the character of
Hults for truth and veracity. Cyrus S. Lynch and Nicholas
Smith swear that they would not believe him under oath.
DECEMBER TERM 1846. 117
Rector v. Rector et al.
The reason assigned by Smith is, that on an occasion when
he was indicted and Hults was a witness in the case, his tes-
timony was different from what he had reason to expect it
would have been from intimations which he had received
from Hults. Smith is not asked, nor does he state, whether
he knows Hults' general reputation for truth, but says he
would not believe him under oath nor any other way.
Now it appears from statements made by other witnesses,
that Smith was an intemperate man, and by the opinion of
one that his intellect was somewhat impaired. They also add
that he was naturally vindictive in his character, that Skiles
had an undue influence over him, and that little reliance
could be placed upon his testimony.
Although as a general rule it is not licensable on account
of the multiplicity of irrelevant and improper issues which
would thereby be presented, to attack the general character
of an impeaching witness, yet it is proper and highly im-
portant for the pusposes of justice, that a court or jury trying
a cause should know whether such as well as any other wit-
ness, is incapacitated from giving testimony on account of
mental alienation without regard to the causes by which it
may have been produced. Webb and Clemson both declare
that every reliance can be placed upon the testimony of
Hults. Under these circumstances, we do not consider the
testimony or character of this witness at all impeached.
Several questions of law have been presented and argued
by the counsel, some of which will be briefly noticed. On the
part of the defendants it has been urged [a]
First, That the complainant below is barred by lapse of
time, from insisting upon a specific performance of this con-
tract ;
Second, That Riddle was a bona fide purchaser from
Skiles, and therefore he and his heirs cannot be affected by
Skiles' knowledge of the existence of the bond from Stephen
to Elias Rector ; and that Skiles' answer is not evidence
against him or them, to prove any fact material to the issue ;
Third, That there is no sufficient evidence of the contents
of the contract alleged to have been lost ; and
a) Trye vs. Bank &c. 11 HI. R. 379.
118 SUPREME COURT.
Rector v. Rector, et al.
Fourth, That in transferring the certificate of purchase,
the administratrix of Stephen Rector was justified by law,
and therefore the plaintiff, after such sale, could have re-
tained no legal or equitable interest in the land.
The first objection tis answered by the record, which shows
that this suit was instituted in the court below, while the
complainant there was yet a minor, and personally inca-
pable of asserting his claim in a court of justice ; and how-
ever reluctant courts may be to decree specific performance
in ordinary cases, when parties have long and voluntarily
slept upon their rights, as yet they have never held that this
inclination on their part against stale claims can properly
apply in such a case as this, when by reason of his tender
years, the party is disqualified to prosecute his suit in person.
If such is the general rule, the present case is clearly an
exception. In the absence of any positive provision of law
to the contrary, an infant will not be prejudiced or injured
by lapse of time.
With reference to the second point, independent of the
answer of Skiles, there is sufficient in the record to raise the
presumption that Riddle was his partner in the original pur-
chase of the land. This is manifest from his conversations
with Skiles about the bond, as detailed by Smith, and his
declarations to Smith before Skiles convened to him. The
general rule is, that the answer of one co-defendant in Chan-
cery shall not. be evidence against another. To this rrulo also
there arc exceptions. When such defendants are partners,
or when one has acted as the agent of the other in any trans-
action to which the answer may relate, and the agency or
parnership at the time of filing such answer still exists, the
answer of the partner will be evidence against his copartner,
and that of the agent against his principal, when such co-
partner or principal claims through, or under such agent
or partner, [a]
But in this case, Riddle was not a bona fide purchaser from
Skiles. The evidence warrants the conclusion that they
were alike interested in the purchase from Mrs. Rector,
Skiles acting as the agent of Riddle in the transaction.
(a) Martin vs. Dry den, 1 Gil. R. 208 ; Rust vs. Mansfield, 25 111. R. 338.
DECEMBER TERM 1846. 119
Rectorv. Rector.
Their interests are identical and not adverse, and so far as is
shown by the record, the representatives of each still occupy
the position of their ancestors as joint proprietors of the
land. This community of interest being proved by other
testimony, the answer of Skiles is evidence against Riddle
and his heirs, especially so far as it may tend to prove the
existence or notice of the existence of the bond from Stephen
to Elias Rector. Notice to Skiles, who was his agent and
partner in the purchase, is notice to Riddle and to his heirs.
But in this particular case, the heirs of Riddle are not in fact
prejudiced by the answer of Skiles. In it he denies all
knowledge of the bond whatever.
A third objection to the decree, as prayed for in this case,
is not unworthy of attention. After a long period had elapsed,
courts will be cautious in enforcing the specific performance
of a contract where there is any real doubt about its exist-
ence and its terms ; and especially when the contract is lost
or destroyed, it should be made satisfactorily to appear what
were the substantial conditions and covenants which are
sought to be enforced, (a) To ascertain the terms of this con-
tract we must relv mainly upon the testimony of Evans, the
admission of Skiles, and such presumptions as the law appli-
cable to the facts implies. Evans saw the contract, knew
that it was conditioned for the conveyance of one half the
land in question, and believed that it acknowledged the pay-
ment of the consideration money, and that the conveyance
was to be made when the obligor should have paid the residue
of the purchase money to the United States. Skiles admits
the existence of a bond executed by Stephen to Elias Rector
for the conveyance of one half the same land to two, and
that he had got the bond into his own possession, to one of
the witnesses whose testimony has been given in this case.
The evidence goes further, and, by showing that Skiles
having had the same in his possession and neglecting or refu-
sing to produce it upon the trial, raises strong presumptions
and intendments of law against himself.
"The presumption of innocence may be overthrown, and
a presumption of guilt be raised by the misconduct of a
(a) Hough Y8. Coughlan, 41 IU. E. 134.
120 SUPREME COURT.
Rector \\4Rect0r et al.
party in suppressing or destroying evidence which he ought
to produce, or to which the other party is entitled. Thus,
the spoliation of papers material to show the neutral char-
acter of a vessel furnishes a strong presumption in odium
spoliatoris against the ship's neutrality. A similar presump-
tion is raised against a party who has obtained possession of
papers from a witness after the service of a subpoena duces
tecum upon the latter for their production, which is with-
held. The general rule is omnia presumuntur spoliatorum.
His conduct is attributed to supposed knowledge that the
truth would have operated against him." 1 Greenl. Ev 43.
"The rule is, when a party refuses to produce books and
papers, his opponent may give secondary or parol proof of
their contents, if they are shown to be in the possession of
the opposite party ; and if such secondary evidence is im-
perfect, vague, and uncertain as to dates, sums, boundaries,
&c, every intendment and presumption shall be against the
party who might remove all doubt by producing the higher
evidence." Life & Fire Ins. Co. v. Mechanics' Ins. Co.
N. Y. 7 Wend. 31.
We think there is sufficient evidence to warrant the belief
that Skiles once had this contract in his possession. If so
the preceding principles of law apply with all their force
against him. The most material portions of it are proved.
It is only uncertain as to the date, penality, and unimportant
particulars of the covenants or conditions, and in these re-
spects the plaintiff's case is aided by legal intendment and
presumption.
In favor of the fourth point no sound argument can be
advanced. It is true, that by the laws of this state the admin-
istratrix of Stephen Rector had a right to dispose of the cer-
tificate. Rector himself in his lifetime had the same right.
Although by the payment of one fourth of the purchase money
he had not acquired a title as against the United States, yet
he had an incohate interest, which upon the payment of the
residue, would confer upon him or his assignee a perfect
legal title.
The law had made these certificates and the interest ac-
DECEMBER TERM 1846. 121
Rector v. Rector et al.
quired under them property : and as between the holder and
third persons, subject to the same rules, and the same assign-
able and transferable qualities, as other property of a similar
character.
Whether the owner's interest then was of a real or per-
sonal nature, would be entirely immaterial. If in his life-
time, he had parted with that interest, or any portion of it,
it would be a volation of first] principles to contend that such
interest could descend to, or vest in his heirs or administra-
trix, or that they, or she could transfer the same to another,
in fraud of a prior bona fide purchaser.
The decree of the circuit court of the county of Alexan-
der is reversed, and a decree entered in this court, that the
plaintiff in error, Henry Rector, pay into the hands of the
clerk of the circuit court of the county of Alexander the
sum of two hundred aud ninety dollars and twenty one cents,
and interest thereon, at the rate of six per cent, per annum,
from the first day of December, A. D. 1828, up to the time
of such payment, being ^one half of the purchase money ad-
vanced by John Skiles andi James Riddle for the tract of
land in this decree hereinafter mentioned, and legal interest
thereon from the time of such advancement, to and for the
use and benefit of the defendants, the legal heirs of John
Skiles and James Riddle,"deceased ; which said sum of money
shall be paid out and distributed to them, the heirs^ of said
Skiles and Riddle, under the order and direction of the
circuit court of Alexander county, in such sums as they
may in the judgment of said court, be respectively entitled
to receive. Said money and interest to be paid to the said
clerk within six months from the date of this decree.
And it is further ordered and^t decreed, that the said de-
fendants, James Skiles, Robert King, and Jane King, his
wife, Abraham S. Latta, and Elizabeth Latta, his wife, ( the
said James, Jane and Elizabeth being the heirs at law of
John Skiles, deceased, ) Esther Riddle, Mary Riddle, James
Riddle, Henry D. Riddle, Esther Riddle, Jr., and Charles
K. Riddle, heirs at law of James Riddle deceased, within
the period of two months after the expiration of the six months
122 SUPREME COURT.
Rector v. Rector et al.
before mentioned for the payment of said money, in case the
same shall have been paid as aforesaid, make, execute and
deliver to the said Henry Rector, plaintiff in error in this
suit, a deed, or deeds, in fee simple, with covenants of spe-
cial warranty against all incumbrances done and suffered by
them, or any of them, to the equal undivided half part
of fractional section number twenty seven, (27,) in town-
ship number fifteen, (15,) south, of range number one, ( 1 )
east of the third principal meridian in the county of Pulaski,
formerly Alexander.
And it is further ordered and decreed, that in default of
the said defendants, making and delivering said deed or deeds,
in manner aforesaid, that the master in chancery of the
county of Alexander be, and he is hereby appointed a com-
missioner on their behalf, to make, execute and deliver the
same, pursuant to the decree hereby rendered.
It is further ordered, adjudged, and decreed, that in case
the plaintiff in error shall neglect and refuse to pay said sum
of money, and interest thereon, within the time prescribed
herein, Uhat then his said bill of complaint shall stand dis-
missed at his costs, both in this court and in the court
below. And in case the same shall be duly paid, in manner
aforesaid, then each party shall pay one half the costs of this
proceeding, both in this court and in the court below.
Decree reversed.
DECEMBER TERM, 1846. 123
Branigan v. Rose et al.
James Branigan, appellant, v. Orrin J. Rose et aL,
appellees.
Appeal from Cook.
The principal on which pleas in abatement of another action pending are sus-
tained is, that^the law will not permit a debtor to be harassed 'and oppressed
by two actions to recover the same demand, where the creditor can obtain
a complete remedy by one of them. If the same remedy is furnished by the
first action, the subsequent one is wholly unnecessary, and is, therefore,
regarded as vexatious, and will be abated. But if the remedy by the former
action may be partial or ineffectual, the pleam abatement to the latter cannot
prevail.
A plea in abatement, alleging the pendency of a proceeding in attachment,
ought not of itself to abate a subsequent suit in personam, an attaehment be-
ing generally a mere proceeding in rem. If such a plea is interposed, it
show by a proper averment, that the defendant was personally a party to
the proceeding by attachment.
"Where a demurrer to a plea in abatement was sustained, no judgment was ren-
dered at the time againstjthe defendant, but a judgment was subsequently
rendered : Held no error, for the defendant was not precluded from answer-
ing over after the decision sustaining the demurrer, and that, on his declin-
ing to do so, the court proceeded to dispose of the case.
The mere order of the court granting an appeal to a defendant does not divest
the plaintiff of a right to an execution upon the adjournment of court. The
judgment becomes operative from the last day of the term, and continues so
until the appeal is perfected by the filing of the bond. The refusal of the
court to stay proceedings on an execution, under such circumstances, cannot
be assigned for error, the application being addressed to the sound discretion
of the court.
Assumpsit, in the Cook county court, brought by the
appellees against the appellant. The case was heard at the
November term 1846, the Hon. Huge T. Dickey presiding.
The defendant pleaded the pendency of an attachment suit
in abatement, which plea appears in the brief of the counsel
for the appellees. There was a demurrer to the plea, which
the court sustained. The defendant not answering further,
the court assessed the plaintiff's damages, and rendered a
judgment upon the assessment.
J. B. Thomas, and B. S. Morris & J. J. Brown, for the
appellant.
The court erred in deciding the plea in abatement bad.
124 SUPREME COURT.
Branigan v. Rose etal.
In 5 Johns. 101-2, the court say: "If then, the defendant
could have been protected under a recovery had by virtue of
the attachment suit, and could have pleaded such recovery
in bar," &c.
The same principles will support a plea in abatement of
such attachment pending and commenced prior to said suit.
19 Wend. 215.
In Kentucky, it has been held that an attachment pending
has uniformly furnished a good plea in abatement. 5 Littell,
oo!z.
In Pennsylvania, the same decision has been made. 1 Binn.
25.
The court erred in refusing to stay proceedings on the
execution, which was improperly issued
A. T. Bledsoe, J. A. McDougall & E. Peck for the ap-
pellees.
The only question in this cause arises upon the sufficiency
of the following plea in abatement :
"James Branigan ) Cook County Court,
ads. > Assumpsit.
Orrin J. Rose et al. )
And the said defendant, Branigan, by Morris & Brown,
comes and prays judgment of the said writ and declaration
thereon, because he says, that before emanation of said
writ, to wit: on the 20th day of August, A. D. 1846, in the
Cook county court, sued out their certain writ of attach-
ment, upon the same indentical account, promises and under-
takings in the said declaration mentioned in this present suit,
as by the record and proceedings thereof remaining in the
said court of Cook county more fully appears.
And the said defendant further saith, that the parties in
this and the said former suit by attachment are the same,
and not other or different persons, and that the supposed
causes of actions in this and the said former suit, all and
each, and every of them are the same, and not other or dif-
ferent causes of action : and that the said former suit, go
brought and presented against him, the said defendant, by
ths said plaintiffs as aforesaid, is still depending in the said
DECEMBER TERM, 1846. 125
Branigan v. Rose et al.
court. And this the said defendant is ready to verify :
Wherefore he prays judgment of the said writ and declara.
tion in this suit, and that the same may be quashed, &c.
Morris & Brown deft's. att'ys.
James Branigan, the above named defendant in this cause
maketk oath and saith, that the plea hereunto annexed is
true in substance and matter of fact.
James Branigan."
Subscribed and sword to before me, )
this 6th day of Oct. 1846. j
James Curtiss, Cl'k.
It was held by the court to lack the certainty which the
law requires in pleas of abatement. There was some other
objections made to it ; but the want of certainty in the plea
was so apparent, that the other points were not considered
by the court below.
There is no averment as to who sued out the attachment,
or against whom the attachment was sued out ; a recital
connected with the avermemt that former suit is still pend-
ing, is all that would indicate who were parties to the former
action.
The plea should have averred the names of parties plain-
tiff and defendant in the former ; if then the parties did not
appear to be the same, plaintiff could demur ; if parties ap-
peared to be the same and were not, there would be a vari-
ance in the proof.
The plea is otherwise defective, but as this defect is palpa-
ble, we do not think it necessary to refer to them.
For the rule as to the decree of certainty and precision
required in pleas in abatement, see Graham's Pr. 228, under
head of "Pies in abatement;" 2 Saunders, 209, a. b., being
in 3d vol. of modern editions ; Docker v. King, 5 Taun. 652 ;
Roberts v. Moon, 5 T. R. 487 ; Haworth v. Spraggs, 8 do.
516 ; 1 Chitty's PL 495.
The doctrine contained in all these cases is, that a plea in
abatement must be certain to the greatest extent : that the
plea will be closely scrutinized, and meet with no favor as
it is but] an obstruction to the administration of justice in the
darticular case ; that the averment of parties1 names cannoi
126 SUPREME COURT.
Branigan v. Rose et al.
be supplied by reference to the title in the margin, but must
o£ itself be perfect and complete in its averments, and must
be pleaded according to the strict forms of the law.
It was further insisted below, that a proceeding in attach-
ment was generally a mere proceeding in rem, and as such,
would not abate a subsequent suit in personam. The pro-
ceeding may become personal by appearance, but in pleading
an attachment suit in abatement, the plea should aver suffi-
cient to show(if such was the fact) that the defendant was
in person a party thereto.
In Delahay v. Clement, 3 Scam. 208, it was held that a
proceeding to enforce a mechanic's lein could not abate a
subsequent suit for the debt, for the reason that the former
proceeding was in rem, and it was held that the remedy was
cumulative.
The case of Embree & Collins v. Hanna, 5 Johns. 101,
was relied on by defendant below to sustain the plea, but
the court will perceive that there is not the least anology
between the cases. There the defendants owed Hanna. Bach
& Puffer, creditors of Hanna, attached this debt in the hands
of defendants ; it was held that Bach & Puffer acquired a lein
upon the debt, and that their proceedings would abate a
subsequent suit against defendants by Hanna himself. Here,
had both suits been permitted to progress, there would have
been separate recoveries by different parties of the same
debt, and payment of one would not discharge the other.
Both proceedings were in personam, that is, against defend-
ants in person, and both for the recovery of the debt.
We have no occasion to question the correctness of this
decision, and while this is the only case that might be mis-
understood to contain doctrine in support of the plea that
we have been able to meet with, we feel confident that it ha
been nowhere held that an attachment in rem was matter of
abatement to subsequent proceedings by the same parties
in personam.
In Winthrop v. Carleton, 8 Mass. 456, and Morton v-
Webb, 7aVerm. 124, are rules such as are contended for by us.
It seems to us, that in no view can an attachment suit
proper, that is, a proceeding in rem, abate a subsequent
DECEMBER TERM, 1846. 127
Branigan v. Rose et al.
action. Could not an attachment be taken out in two juris-
dictions, or in two counties, at the same time, reaching
different properties ? In this county, proceeding against
goods ; in another, against real estate. And could it be
strictly said, in abatement of any personal action, that the
attachment suits were between the same parties ? Cer-
tainly not, for until appearance, there is but one party, and
that party seeking a remedy, not against the person, but the
property of the defendant.
Should the court think it necessary to consider the point,
we insist upon the position assumed as the law, i. e., that an
attachment proceeding does not abate a subsequent suit for
the debt, according to the ordinary course of the common
law.
A question is made as to the regularity of the execution.
It is assumed that there is nothing in this point. The only
authority we have seen is that reported in 1 J. J. Marsh.
9«5, in which the court say, that praying an appeal does not
ipso facto suspend the judgment or prevent any proceeding
for its enforcement. Granting an injunction does not enjoin
judgment until bond is given, and the cases are analogous.
If he chooses, he may give the bond promptly, &c.
This must be the law. A judgment once operative, once
complete, retains all its properties until discharged in fact
or by law, or suspended by law. There is no law which stays
the effect of a judgment until the appeal bond is executed.
When the appeal bond is filed the appeal is perfected, and
the case is for review in the appellate court ; but until then,
there being no law to the contrary, it must be a valid, sub-
sisting, and operative judgment, liable at any time to be
enforced by process of law.
The opinion of the court was delivered by
Treat, J.* This action was commenced in the Cook
County Court, by Rose & Rattel against Branigan. The
declaration was in assumpsit. The defendant filed a plea in
' ^Justices Lockwood and Young did not sit in this case.
128 SUPREME COURT.
Branisran v. Rose et al.
abatement, averring in substance the pendency in the same
court of a proceeding in attachment on the same cause of
action, commenced prior to the institution of this suit. The
court sustained a demurrer to the plea, but rendered no formal
judgment of respondeat ouster. The defendant failing to
answer further to the action, the plaintiff's damages were
assessed by the court, by the agreement of the parties.
Judgment was rendered on the assessment. The defendant
prayed an appeal to this court, which was granted on the
condition that he should enter into bond within ten days.
Before the expiration of the ten days, and before the execu-
tion of the bond, the plaintiff caused an execution to issue
on the judgment. The defendant then applied to the Judge
at his chambers for an order to stay proceedings on the
execution until he could move the court to set it aside,
which was denied.
The chief point in the case is, as to the validity of the plea
in abatement. The principle on which pleas of this char-
acter are sustained is, that the law, which abhors a multi-
plicity of suits, will not permit a debtor to be harrassed and
oppressed by two actions to recover the same demand, where
the creditor can obtain a complete remedy by one of them.
If the same remedy is furnished by the first action, the sub-
sequent one is wholly unnecessary, and is, therefore, re-
garded as vexatious, and will be abated. But if the remedy
by the former action may be partial or ineffectual, the plea
in abatement to the latter cannot prevail. Bacon's Abr.
" Abatement," M ; Gould's PI. 283. On this principle, it is clear
that the pendency of a proceeding in attachment ought not
of itself to abate a subsequent suit in personam. Under our
statute, an attachment is generally a mere proceeding in rem.
The judgment is in rem, and not in personam. It can only
be satisfied out of the estate attached. No action can be
maintained on the judgment, the record not affording prima
facie evidence of indebtedness. The plaintiff's remedy may,
therefore, be but partial and incomplete. If no estate of the
debtor is attached, it fails altogether, (a) It is true that this
proceeding may become personal by an appearance, but in
(a) Manchester vs. McKee, i Gil. R. 520 ; Green vs. Van Buskirk, 7 Wal. U. S. It.
148.
DECEMBER TERM, 1846. 129
Branigan v. Rose et a).
pleading the pendency of an attachment in abatement, the
plea ought to show by a proper averment that the defendant
was personally a party to the proceeding. In the opinion of
the court the plea in question is bad. This view of the case
is sustained by the authorities. In Morton v. Webb 7
Verm. 123, it was decided that the pendency of a trustee
action could not be pleaded in abatement of a subsequent
suit, in the common law form, for the same cause of action.
That case is identical in principle with the present. In
Delahay v. Clement, 3 Scam. 201, this court held that a
proceeding under the statute to enforce a mechanic's lien
could not abate a subsequent action for the same demand, on
the ground that the former proceeding was in rem, and might
not, therefore, afford a complete remedy. See, also, the case
of Winthrop v. Carleton, 8 Mass. 456. We have been re-
ferred to the cases of Embree & Collins v. Hanna, 5 Johns.
101, and Scott v. Coleman, 5 Littell, 349, as establishing a dif-
ferent doctrine, but on examination they fail to snstain the
position. In the first case, Hanna was indebted to Embree
& Collins, and Bach & Puffer, creditors of the latter, attached
the debt in the hands of the former. To a subsequent action
brought by Embree and Collins to recover the same debt,
Hanna was permitted to plea in abatement the pendency of
the attachment, for the reason that the attachment of the debt
in the hands of Hanna fixed it there in favor of the attaching
creditors, and that he could not afterwards lawfully pay it to
the plaintiffs in the second action. In the latter case, the
court simply decided that the payment of a judgment ren-
dered in Pennsylvania, in a foreign attachment against the
defendants, was a good defence to an action brought in Ken-
tucky, on the same cause of action.
It is assigned for error, that the judgment in sustaining the
demurrer to the plea in abatement, was in chief, and not
respondeat ouster. Technically the latter judgment should
have been entered of record, but in point of fact no judg-
ment, interlocutory or final, was then rendered. This omis-
sion was not to the prejudice of the defendant. He was not
thereby precluded from answering over to the declaration,
gill. — in — 9.
130 SUPREME COURT.
Branigan v. Gurnee et al.
but had an undoubted right so to do. On his declining to do
it, the court proceeded properly to dispose of the case.
Bradshaw v. Morehouse, 1 Gilman, 395, is an authority in
point, (a)
The refusal of the Judge to stay proceedings in the exe-
cution is also assigned for eiror. That application was
addressed to the sound discretion of the Judge, and his decis-
ion thereon cannot be assigned for error. As well might
the refusal of a Judge to allow an injunction, or grant a writ
of habeas corpus be assigned for error. The discretion, how-
ever, was properly exercised. The plaintiffs had the unques-
tioned right to an execution on the adjournment of the court.
The mere order granting the appeal did not divest that right.
The judgment became operative from the last day of the
term, and continued so until the appeal was perfected by the
filino' of the bond. The allowance of the appeal was condi-
tional,, and did not operate as a supersedeas on the proceed-
ings until there was a compliance with the condition.
The judgment of the Cook County Court is affirmed with
costs.
Judgment affirmed.
James Branigan, appellant, v. Walter *S. Gurnee et ai
appellees.
Error to CooTc.
This7" case was argued in connection with the preceding,
depended upon the same facts, and the same questions of law
arose as in the former case.
J. B. Thomas, B. S. Morris & J. J. Brown, for the
appellant.
A. T. Bledsoe, J. A. McDougall & E. Peck, for the ap-
pellees.
(a) Smith vs. Harris, 12 111. R. 466.
DECEMBER TERM, 1846. 131
Semple v. Hailman et al.
The opinion of the court was delivered by
Treat, J. The questions arising on this record are pre-
cisely like those presented in the case of Branigan v. Rose
& Rattle, and consequently the same judgment must be
entered.
Judgment affirmed.
James Semple, plaintiff in error, v. David Hailman et al.
defendants in error.
Error to Madison.
A suit was brought on four different writings obligatory which were set forth
in as many different counts in the declaration. Issue was joined on all, the
cause^was submitted to the Court for trial, the Court found the issues joined
on the three first counts in favor of the plaintiffs, and assessed their damages
accordingly: Held, that the judgment was erroneous, there being no finding
on the fourth count of the declaration.
Debt, in the Madison circuit court, brought by the defend-
ants in error against the plaintiffs in error, and heard before
the Hon. Gustavus P. Koerner, at the October term 1845,
when a judgment was rendered in favor of the plaintiffs be-
low for $2402, debt, and $1400, damages.
The case, for the purposes of this decision, is sufficiently
stated by the court.
W. Martin, and M. Brayman, for the plaintiff in error,
as to the point that all the issues must be found, cited 4
Conn. 190. and 8 Cowen, 406.
D. J. Baker, for the defendants in error.
I. The plaintiff in error complains that no judgment was
given, or finding had, on the fourth count of the declaration.
It is submitted, that this is a sufficient finding on that count
in favor of the defendant. In the case of Talbot v. Talbot
2 J. J. Marsh. 3, it is said, that in an action of detinue for
different articles, and verdict for plaintiff as to some silence
132 SUPREME COURT
Semple v. Hailuan et al.
as to residue is equal to a verdict for the defendant as to
the article not noticed, and a bar to a future action. No
objection was made in the court below, and this description
of objection is not favored. 16 Peters, 319. Where there
are several counts in the declaration, aud after interlocutory
judgment damages are assessed on each count, and judgment
is arrested on the first count, no objection being made to the
others, the plaintiff will be allowed to enter a nolle prosequi
on the first count, and take judgment on the others. Liv-
ingston v. Livingston, 3 Johns. 189. When the general
issue and other pleas are pleaded, and the jury find a verdict
on only the general issue, it is a sufficient finding. Thomp-
son v. Britton, 14 Johns. 84-6. If the declaration contain
two counts, it was held, if one be sufficient, judgment may
be entered on the good one. 16 Pick. 541. Where two
issues are joined to different facts of the same declaration,
and judgment is arrested as to one, the verdict as to the
other is not affected. 2 U. S. Dig. 603, § 628. A judgment
will be arrested if one count is defective ; but the verdict
may be entered on the good counts only. Tb. 656, § 48.
Where there are several counts, some good and some bad,
a general verdict shall be applied to the good ones. lb.
631, § 122. A verdict against one only, in an action against
three, ( the names of the others being struck from the pro-
ceedings), will not be set aside. lb. 631. If a verdict is
given for more than the case warrants, the party has the
right to remit. lb. 635, § 231. The presumption is in
favor of verdicts. lb. 632, § 150. A verdict is amendable
in the court of Errors. 8 Co wen, 652.
II. If this be error, the defendant has no cause of com
plaint. It is one to his advantage, and not to his disadvan-
tage ; and the principle is general, that a man cannot assign
for error that which he cannot show is to his disadvantage.
1 Blackf. 54 ; 2 Bac. Ab. 490. A party cannot assign for
error decisions, however erroneous, which could not have
been prejudicial to himself. Arenz v. Reihle, 4 Scam. 342 ;
Schlenker v. Risley, 5 do. 486. A party cannot assign for
error that which makes in his own favor, unless under pe-
DECEMBER TERM, 1846. 138
Semple y. Hailman et al.
culiar circumstances. Bailey v. Campbell, 1 do. 47 ; Harri-
son v. Clark, lb. 131 ; Kitcbell v. Bratton, lb. 303. Although
he decree of the inferior court be erroneous in some of its
details, yet if the aggregate result be more favorable to the
plaintiff in error than it should be, he cannot ask a reversal.
3 J. J. Marsh. A party is not permitted to avail himself of
an error not to his prejudice. Gano v. Slaughter, Hardin
76. Where, upon the whole record, it appears that the judg-
ment is right, although the errors assigned exist, the judgment
shall be affirmed. Saunders v. Johnson, 1 Bidd, 322.
The opinion of the court was delivered by
Caton, J * The judgment in this case must be reversed.
The suit was brought on four different writings obligatory set
forth in as many different counts in the declaration. Issues
were joined upon pleas to all of these counts, and the cause
submitted to the court for trial by the agreement of the
parties. The court found the issue joined on the three first
counts in favor of the plaintiffs below, found their debt and
assessed their damages. There was no finding upon the
fourth count. In this there is manifest error. In Miller v.
Trets, 1 Lord Raym. 324, the issue joined was, whether
the defendant was guilty of selling lace and silk. The jury
found him guilty of selling lace, but said nothing of the silk.
The court held that the plaintiff could not amend, and the
finding being insufficient, the judgment was reversed. In 2
Salk. 374, the court hold that "a verdict which finds part
only of the issue, is void as to the whole. " A verdict was
set aside for the same cause in the case of Van Benthuysen
v. De Witt, 4 Johns. 213. (a)
In the case of Patterson v. The United States, 2 Wheat.
221, the court say : " A verdict is bad if it varies from the
issue in a substantial matter, or if it find only a part of that
which is in issue." Numerous other authorities might be
mentioned to show that the finding must be as broad as the
issues, otherwise no judgment can be pronounced upon it,
•Wilson, C. J. and Justices Lockwood aud Young did not sit in this case
134 SUPREME COURT.
Ex parte Birch.
but it is unnecessary. The proposition is too clear to admit
of doubt. It necessarily results from the nature of the case.
Questions were made upon various demurrers presented
by either side, which do not seem to have been directly acted
upon by the court, but they were all waived by the subse-
quent pleadings of the parties.
An application was made by the defendants in error to
discontinue, in this court, as to their fourth count, but it
cannot be allowed. The party cannot be permitted to amend
his record here, so as to obviate the error which is well as-
signed. The case in 1 Lord Raym. above referred to is
in point.
The judgment of the Circuit Court is reversed with costs,
and the cause remanded, and a venire de novo awarded.
Judgment reversed.
Ex parte Robert Birch.
Motion for a Habeas Corpus.
A. person accused of the crime of murder, and jointly indictee' with others lor
thatotfence, wai not put upon his trial, hut was used by the State's Attorney
as a witness on the trial ot the others, who were convicted and executed.
In giving his testimony, he did not, in any way, admit that he participated in
the commission of the murder. Neither did it appear, in his petition by him
filed lor a wTrit of habeas corpus, that he was guilty, or had been convicted of
any crime: Held, that he was not in a condition to avail himself of the right*
and privileges of accomplice.
By the Constitution oflllinois, the Governor cannot pardon before conviction.
Motion for a writ of habeas corpus, &c. The grounds of
the application made to this court will appear in the peti-
tion filed and the affidavit accompanying it, doth of which
are incorporated into the opinion.
0. Peters, for the applicant.
This application is made for a writ of habeas corpus, for
DECEMBER TERM, 1846.
Ex parte Birch.
the purpose of bringiug the applicant before this court, that he
may be discharged on bail.
The prisoner claims this as an equitable right, based upon an
implied contract made between him and the Government, by its
proper officer and organ.
The petition, and affidavit of the District Attorney annexed
thereto, show that tne prisoner was indicted jointly with others
for the murder of George Davenport ; that three of those others
were put upon their trial ; that the District Attorney, under the
order of the court, had Birch brought into court, and used him
as a witness against his accomplices; that he testified fully and
fairly, and to the satisfaction of the District Attorney.
On this state of facts we contend that Birch is entitled to a
pardon, and being thus entitled, and being no% longer in danger
of losing his life, even if convicted, that he ought to be dis-
chared on bail.
It is entirely immaterial, whether the District Attorney gave
him any pledge that he should be no further prosecuted, or that
he would recommend him to clemency, or not. It is not this
pledge, or any assurance on the part of the Government that
gives the right to the accomplice. It is the fact that he has
been used as a. witness by the Government, that creates the
right. Whenever the Government, by its proper officer, uses
the accomplice a3 a witness against his partners in crime, it ac-
knowledges its own weakness, and that it is compelled to resort
to the evidence of one acknowledged to be polluted with crime, for
aid. It is a species of evidence that should be resorted to with
great caution, but when resorted to, the implied pledge of the
Government should be faithfully redeemed. Unless this is done,
the evidence of accomplices can never be obtained, and great
criminals will escape punishment. For what criminal will
make disclosures against his companions in guilt, if he is
afterwards to be tried, and convicted, and executed ? If the
faith of the Government is not regarded, the chain that binds
those together who follow the trade of crime will never be
136 SUPREME COURT.
Ex parte Birch.
broken, but will be strengthened. Men are*now banded to-
gether who prey upon the community. They feel strong ; they
are stronger than the law. The law is measurably powerless,
and cannot reach them. They will not be persuaded by the
" terrors of the law " to turn away from evil doing. But once
create distrust and want of confidence in one another, and their
power will be broken, and the law will be again supreme.
This is the proper mode, and the most appropriate time, to
have this question settled, and settled rightly ; for if the law
was ever weak, it is true now. If the perpetrators of crime were
ever strong,!above and stronger than the law, it is so now. And
now is the time when the Government should act in good faith
to those who lend it assistance, even though that assistance
comes from those who are steeped in crime.
This is no new -question. In the case of Rex v. Judd, 1
Cowp. 183, the prisoner was indicted for forgery. When
brought before Lord Mansfield on habeas corpus, for the pur-
pose of being discharged on bail, he, with the other judges, ex-
pressed no doubt but that the prisoner ought to be discharged on
bail, on the ground of her having been called as a witness for
the prosecution, if she had made full and fair disclosures against
her accomplices ; but as it appeared that she had not, they re-
fused to bail her.
When she was brought to trial, the same point was
again made, and the judge suspended the trial until he
could take the opinion of the twelve judges ; and all the
judges concurred, that if she had made full and fair disclo-
sures against her accomplices, she ought not to be tried.
But it appearing that she had not done this she was put
upon her trial. But none of the judges entertained any
doubt but that she ought not to have been tried, if she had ful-
filled the contract on her part.
In the case of the Commonwealth v. '"Knapp, 10 Pick. 487,
Mr. Webster, arguendo, says : " The moment an accomplice
is permitted to testify, by the Attorney General, to make
DECEMBER TERM, 1846. 137
Ex parte Birch.
disclosures, he is safe. He is then as safe as if he had his par-
don," &c. And Putnam, J., in delivering the opinion of the
court, fully recognizes the same doctrine.
This subject underwent a very full and able discussion in the
case of The People v. Whipple, 9 Cowen, 707, and the argument
and decision of the court most clearly shows that an accomplice,
having made full and fair disclosures, cannot and ought not to
be further put in jeopardy. And the case of the negro man Jack
is referred to. Jack was guilty of murder. He was called as a
witness against his accomplices. He was told by the Judge,
that if he testified, he must not expect or hope for any recom-
mendation for pardon. Yet he testified, and afterwards the
eminent counsel for the prosecution felt bound to recommend
him to pardon, and the Judge himself joined in the recommen-
dation. Jack was disposed of by a special act of the Legisla-
ture.
Numerous other authorities might be referred to, in support of
this application, but it is not deemed necessary. The public
faith has been impliedly pledged to this prisoner. He has ful-
filled the condition on his part ; and I now, in his behalf, ask
this court to redeem this solemn pledge of the Government,
and discharge him from his imprisonment.
D. B. Campbell, Attorney General, in resisting the appli-
cation, contended that the court could not take cognizance
of this question. It was one which could only be acted upon
by the Executive. But if that position be incorrect, and the
court can adjudicate upon the merits, it is necessary that
the applicant should be here in person, and that witnesses
should be examined, that the court might determine upon
the facts of the case.
From the only evidence offered here, the affidavit of the
State's Attorney in the circuit where the applicant is in
custody, it appears that he did not testify in relation to him-
self. He did not testify to the whole truth, but was guilty
of perjury. He failed to comply with his contract, if any
contract can be implied from the circumstances of the case,
and there was no express contract, of course.
138 SUPREME COURT.
Ex parte Birch.
The opinion of the court was delivered by
Purple, J. * The petitioner, by his counsel, has applied
to this court for a writ of Habeas Corpus, upon the following
state of facts, as set forth in his petition and the accompany-
ing affidavit of the State's Attorney, who prosecutes in the
case, in which he was admitted as a witness against others
jointly indicted with him for murder.
"To the Honorable the Justices of the Supreme Court of the
State of Illinois, at a term of said court, begun and holden
at the City of Springfield, on the second Monday of De-
ber, in the year of our Lord, eighteen hundred and
forty six :
Respectfully represents Robert Birch, that at the October
term of the Rock Island Circuit Court, A. D. 1845, the
Grand Jury then and there duly selected, impanelled and
sworn, found and returned into the said circuit court, an
indictment against your petitioner, and John Long, Aaron
Long, Granville Young, John Baxter and William Fox,
charging them with having committed the crime of murder
upon one George Davenport, on the fourth day of July, A.
D., 1845.
A copy of the said indictment is hereto annexed and made part
hereof, marked [A]
And your petitioner further shows unto your Honors, that
at the time of the finding of the said indictment, your peti-
tioner is informed and believes by virtue of a warrant issued
by some justice of the peace of said county, upon the charge
of having committed, in conjunction with the said Longs,
Young, Baxter and Fox, the crime of murder aforesaid ; that
after the finding of the indictment as aforesaid, your peti-
titioner was detained in custody in said jail until about the
month of June last, when he was removed to the county of
Knox, and committed to the jail of that county, where he
* Wilson C. J. did not sit in this case.
DECEMBER TERM, 1846. 139
Ex parte Birch,
ever since hath been, and still is confined and detained in
custody to await his trial upon the said indictment ; the venue
in said cause, on the application of your petitioner, having
been changed from said county of Rock Island to said county
of Knox, and the said indictment is now pending and unde-
termined in the circuit court of said couuty of Knox.
And your petitioner further shows, that at the same October
term 1845, of the Rock Island circuit court, the said John
Long, Aaron Long and Granville Young were put upon their
trial upon said indictment, they having severally pleaded not
guilty thereon.
And your petitioner further shows, that Thomas J. Turner,
Esq., then and long after the district attorney for the sixth
judicial circuit, elected, not to put your petitioner upon trial
at the same time with the said Longs and Young ; but upon the
trial aforesaid of the said Longs and Young, your petitioner
was then still detained in custody, and confined in the jail
of said Rock Island county, being so charged as an accom-
plice of the said Longs, Young, Baxter and Fox, in the
said crime of murder a3 aforesaid ; and your petitioner upon
the said trial, by the request and direction of the said district
attorney, and by the order of the said circuit court, was brought
into said court from said jail as a witness for the people
and against the said Longs and Young ; and being- so called
as a witness by the same district attorney, your petitioner
was sworn, and was examined by said district attorney on behalf
of the people, and cross-examined by the counsel for the
defendants then upon trial ; and being thus called and sworn,
your petitioner then and there freely, fully, fairly and impar-
tially disclosed and testified to all the facts and circumstances
within his knowledge touching the guilt of the said Longs
and Young go far as he knew or was acquainted there-
with ; nor did your petitioner then and there knowingly or
designedly withhold, conceal, or in any manner omit to testify
to and state any fact within his knowledge material to the issue
then on trial.
And your petitioner further shows unto your honors, that
upon the said trial, the jury to whom the case was submitted
returned a verdict of guilty against the said Longs and
140 SUPREME COURT.
Ex parte Birch.
Young ; and thereupon, at the said October term, the said cir-
cuit court passed upon them severally the sentence of death ; and
in about four weeks thereafter, the said Longs and Young, in
pursuance and conformity to said sentence, were executed at said
Rock Island county.
And your petitioner further states, that the testimony so given
by him upon the said trial was material to the issue, and, in con-
nection with the other evidence, essentially contributed to the
conviction aforesaid.
And your petitioner further shows to your honors, that at the
same October term of said Rock Island circuit court, Henry H.
Redding and George G. Redding were indicted as accomplices of
the said Longs and others, in the murder of the said Davenport,
and at the same term, but after the trial of the said Longs and
Young, they, the said Reddings, were put upon their trial; and
the jury could not agree and were discharged without rendering
any verdict. On the trial of the said Reddings, the said district
attorney, then and there conducting the same on the behalf of
the people, directed, and the said circuit court, on the applica-
tion of the said district attorney ordered, that your petitioner
should be again brought from the said jail into court ; and
being brought into court in pursuance of said order and di-
rection, the said district attorney again called your petitioner
as a witness, and he was sworn and testified on the behalf
of the people and against the said Reddings ; and your
petitioner then and there made full and plain disclosures of
all he knew concerning the guilt of the said Reddings, and neither
concealed nor kept back any fact within his knowledge and re-
collection, material to the issue.
Your petitioner refers to the affidavit of the said Turner,
hereto annexed and made part thereof, marked [B.] for a
corroboration of the facts in this petition stated.
Your petitioner further represents, that he is now detained
in the custody of the sheriff of Knox county, and confined in
the jail of said Knox county, for the purpose of putting him
upon his trial upon the said indictment above referred to, and
for no other purpose whatsoever.
Wherefore, your petitioner prajs that your Honors will
DECEMBER TERM, 1846. 141
Ex parte Birch.
award him a writ of habeas corpus, directed to the Sheriff
of said Knox county, requiring and commanding him, forth-
with, to bring your petitioner before your Honors ; and that,
upon the execution of said writ by the said Sheriff your
Honors will order that your petitioner be wholly discharged
and released from his said custody and imprisonment, or ad-
mit him to bail in some reasonable sum ; and for such other
and further relief, as to your Honors shall seem meet, and
to law and justice shall appertain, and as in duty, will ever
pray.
Robert Birch,
By his Attorney,
Onslow Peters."
[A.]
"Of the October term of the Rock Island county circuit
court, in the year of our Lord one thousand, eight hun-
dred and. 'forty five,
State of Illinois,
Rock Island county,
The grand jurors chosen, selected, and rsworn in and for
the county of Rock Island, in the name and by the authority
of the people of the State of Illinois, upon their oaths pre-
sent. That John Long, Aaron Long, Robert Birch, Granville
Young, William Fox and John Baxter, late of the county of
Rock Island and State of Illinois, not having the fear of God
before their eyes, but being moved and seduced by the insti-
gation of the devil, on the fourth day of July, in the year of
our Lord one thousand eight hundred and forty rive, with
force and arms at, and within the county of Rock Island
aforesaid, in and upon one George Davenport, in the peace
of God and the people of the State of Illinois, then and there
being feloniously, wilfully, and of their malice aforethought,
did make, an assault, and that the said John Long, Aaron
Long, Robert Birch, Granville Young, William Fox and
John Baxter, a certain pistol of the value of five dollars,
then and there loaded and charged with gunpowder and one
leaden bullet, (which pistol they, the said John Long, Aaron
142 SUPREME COURT.
Ex parte Birch.
Long, Robert Birch. Granville Young, William Fox and John
Baxter, in their hands then and there had and held,)to, against
and upon the said George Davenport, then and there felo-
niously, "wilfully, and of their malice aforethought, did shoot
and discharge ; and that the said George Davenport, with the
leaden bullet aforesaid out of the pistol aforesaid, then and
there by the force of the gunpowder and shot, shot forth as
aforesaid the said George Davenport in and upon the left
thigh of him, the said George Davenport, then and there
feloniously, wilfully and of their malice aforethought, did
strike, penetrate and wound, giving to the said George Da-
venport then and there with the leaden bullet aforesaid, so
as aforesaid shot, discharged and sent forth out of the pistol
aforesaid, by the said John Long, Aaron Long, Robert Birch,
Granville Young, William Fox and John Baxter, in and upon
the left thigh of him, the 'said 'George Davenport, one mortal
wound of the depth of ten inches, of which said 'mortal wound
the [said George Davenport on the said fourth day of July,
in the year aforesaid, at the county aforesaid, did languish
and languishing did live, on which said fourth day of July in
the year aforesaid, the said George Davenport, at the county
aforesaid, of the said mortal wound died; and so the jurors
aforesaid, upon their oaths aforesaid, do say that the said
John Long, Aaron Long, Robert Birch, Granville Young,
William Fox and John Baxter, the said George Davenport, in
manner and form aforesaid feloniously, wilfully, and of their
malice aforethought, did kill and murder.
And the jurors aforesaid upon their J oaths aforesaid, do
further present, that John Long, Aaron Long, Robert Birch,
Granville Young, William Fox and John Baxter, late of the
county of Rock Island aforesaid, on the fourth day of July,
in the year of our Lord one thousand, eight hundred and forty
five, with force and arms at, and within the county of Rock
Island aforesaid, in and upon George Davenport aforesaid,
did make an assault, and that the said John Long, Aaron
Long, Robert Birch, Granville Young, William Fox and John
Baxter, with their hands about the neck of him, the said
George Davenport, feloniously, wilfully and of their malice
DECEMBER TERM 1846 143
Ex parte Birch.
aforethought, did choke, suffocate and strangle, of which said
choking, suffocating and strangling, he, the said George Da-
venport, then and there died and so the jurors aforesaid upon
their oaths aforesaid, do say that the said John Long, Aaron
Long, Robert Birch, Granville Young, William Fox and John
Baxter, the said George Davenport, in manner and form
aforesaid, feloniously, willfully, and of their malice afore-
thought, did kill and murder, contrary to the form of the
statute in such case made and provided, and against the
peace and dignity of the same people of the State of Illinois,
Thomas J. Turner, State's Att'y."
" Attest.
Achilles Shannon, clerk of the Knox Circuit Court,
Knox county, Illinois."
State of Illinois,
Sangamon county,
(B)
Thomas J. Turner, being first duly sworn, doth depose
and say, that he was State's Attorney in and for the Sixth
Judicial District, before and since the October term of the
Rock Island County Circuit Court A. D. 1845. That at
said October term, an indictment was returned into said
court by the Graud Jury, against John Long, Aaron Long,
Granville Young, John Baxter, William Fox, and Robert
Birch, for the murder of George Davenport, the indictment
charging the murder to have been committed by the above
named persons on the 4th day of July, A. D. 1845.
This affiant further says, that afterward at the same term
of the said court, holden at Rock Island aforesaid, the said
John Long, Aaron Long, and Granville Young were ar-
raigned in said court, and after having severally plead " Not
Guilty" to said indictment, were put upon their trial on said
indictment. This affiant then being State's attorney as afore-
said, aided by other counsel, conducted said trial on the part
of the People ; affiant as such State's attorney, then believed
it to be material and important for the interest of the People
and for the furtherance of justice, that said Robert Birch
144 SUPREME COURT.
Ex parte Birch .
should be used as a witness in behalf of the People, and
against those charged as his accomplices in the said crime
to-wit, John Long, Aaron Long and Granville Young, the
said Robert Birch being then confined in the jail of said Rock
Island county upon the said charge of murder. This affiant
moved the court that he, the said Robert Birch, be brought
in to court to testify in behalf of the People ; and, thereupon,
the court directed the sheriff to bring the said Robert
Birch into court, and he was brought in accordingly. This
affiant then called the said Robert Birch as a witness, who
was duly sworm, and testified in behalf of the People. This
affiant deemed the testimony of said Robert Birch important
and tending to produce a conviction of the defendants then
on trial. Said Birch. in giving his testimony against the said
Longs and Young, appeared to make a full and fair dis-
closure of the facts within his knowledge, concealing only
the part he had taken in the matter, and this affiant saw
nothing to induce him to believe that said Birch did not make
a full disclosure of the facts pertinent to the issue. The jury
returned a verdict of " guilty" against the said John Long,
Aaron Long and Granville Young upon said trial, and they
were severally sentenced by the court to suffer the punish-
ment of death, which sentence was executed by the sheriff
of said Rock Island county, as this affiant has been informed
and believes.
This affiant further says, that after the trial of the said
Longs and Young, this affiant called the said Robert Birch
as a witness in behalf of the People and against Henry H.
Redding and George G. Redding, who were also indicted in
said Rock Island county circuit court, as accomplices in the
murder of the said George Davenport, at which trial the jury
disagreed and returned no verdict. George G. Redding
afterwards plead guilty to a charge of being accessory after
the fact in the murder of George Davenport aforesaid, and
was sentenced to serve two years in the penitentiary of the
State.
After the trials above alluded to, this affiant had an inter-
view with the said Robert Birch, at which interview this
DECEMBER TERM, 1846. 145
Ex parte Birch.
affiant informed Birch that he should probably call him as a
witness to testify in behalf of the people on the trials of other
persons charged with the murder of the said Davenport, and
other crimes which had been committed in the district, and
affiant then urged the said Birch to adhere on all occasions
to stating the truth strictly and whenever called upon to
testify, to state fully and fairly all he knew relative to any
transactions connected with the causes in which he might be
called. The said Birch assured this affiant he would do so,
and declared at the same time that he had done so on the
trials of the Longs and Young, to which this affiant replied,
that he was satisfied with the testimony he had given on that
trial, and believed it to be the truth.
At each time when the said Birch was called to testify as
above mentioned, he was confined in the jail of Rock Island
county, and was brought into court at the request of affiant
as State's attorney and by the order and direction of the
court, and further this affiant saith not.
Tho's J. Turner.
Subscribed and sworn to before me this 2d day of Jan-
uary, A. D. 1847.
J. Calhoun, clerk Sangamon Circuit Court.''
The counsel for the applicant have expressed a desire that
the writ may be denied, unless, under the circumstances dis-
closed, the court should be of opinion that the prisoner
could properly be admitted to bail.
Whether he is to be considered as an accomplice, entitled
to the recommendation of the proper court to executive
clemeDcy, is, at present, unnecessary and perhaps improper
to be determined. At all events he is not, at this time, in a
condition to avail himself of the rights and privileges of
one thus situated.
He has neither admitted that he is guilty of, or been con-
victed of any crime. As yet he has no occasion to apply
for pardon. By the Constitution of our State, the Governor
cannot pardon before conviction. In many of the other
States of this Union, and also in Eugland, this power may at
g.l in. — 10,
146 SUPREME COURT.
Ex parte Birch.
any time be exercised. For this reason the courts in those
States and countries where this power exists, have sometimes
admitted accomplices, who had testified fairly and fully
against their confederates, to bail, in order that they might
the more conveniently make application for that mercy, to
which, by their disclosures, they had become entitled.
No necessity, nor as we can discover, propriety, exists
for such proceeding in this State.
If at large, the prisoner could not now, apply for pardon.
He may never need to make such application. And for this
court to decide upon a motion for, or upon the hearing of a
writ of habeas corpus, that one accused of crime will, if
convicted, be entitled to the clemency of the Executive,
would in effect be to determine that which rests in the dis-
cretion of the tribunal where his prosecution and that of his
accomplices is, or has been pending, and where he has been
admitted as a witness, that he shall or shall not receive a
recommendation to pardon. This discretion cannot be fet-
tered or controlled. If the circuit court, after a convic-
tion, should deny such recommendation, this court could
not interfere with the exercise of such discretion. What
we could not do directly after trial and conviction, we
should not be warranted in doing indirectly before.
The motion is denied.
Motion denied.
DECEMBER TERM 1846. 147
Carpenter v. The People
Frederic A. Carpenter v. The People of the State of
Illinois.
Motion to quash a Fee BUI.
The general principle upon the subject of costs is, that the party who requires
an officer to perform services, for which compensation is allowed, in the
first instance, liable therefor. In legal contemplation, he prays the costs as
they accrue, and it is upon this ground, that the successful party, in a civil
action, recovers a judgment for his cost. If he has not actually advanced
them, he is still responsible to the officer.
In a criminal case, a successful defendant is not entitled to a judgment against
the State for his costs; but he is, nevertheless, liable to pay then to the
proper officer .where the costs accrue in the Supreme Court. The ninth sec-
tion of the eighth article of the Constitution]does not exempt him from
liability for costs.
Motion to quash a fee bill, issued by the clerk of this
court for his fees on a writ of error prosecuted by one con-
victed in a criminal case in the circuit court. The judg-
ment of the court below was reversed, and the question
arose here as to his liability for the costs which he had
made.
J. Gillespie, in behalf of Carpenter, relied upon the following
points :
1. That it would be a great hardship to subject an innocent
person, — as one who is acquitted must be considered, — to the
payment of costs in asserting his innocence ;
2. That the clerk of the supreme court is supposed, in cases
where the defendant is convicted and in all civil cases, to re-
ceive such fees as will compensate for their loss in cases wherein
the defendants are acquitted
He referred to the ninth section of the eighth article of
the Constitution, and the fifteenth section of the " Act con-
cerning courts." Rev. Stat. 144.
L. Trumbull, for the People, cited the following section from
1 D. S. Dig. 618, title, " Costs in Criminal Cases":
If a defendant in an indictment is acquitted, or if a nol.
148 SUPREME COURT.
Carpenter v. The People.
pros, is entered, he pays his own costs only. State v. White-
head, 3 Murph ; S. P. State v. Hargate, C. & N. 63.
The opinion of the court was delivered by
Treat, J. A judgment against Carpenter, on a convic-
tion for a criminal offence, was reversed in this court. The
clerk has issued a fee bill for the costs made by Carpenter
in the prosecution of the writ of error. A motion is made to
quash the process, on the ground that he is not liable for the
costs. The general principle on the subject of costs is, that
the party who requires an officer to perform services, for
which compensation is allowed, is, in the first instance, liable
therefor. In legal contemplation, he pays the costs as they
accrue, (a) On this ground, the successful party in a civil
action recovers a judgment for his costs, If he has not
actually advanced them, he is still responsible to the officer.
The judgment is for his benefit, and not on behalf of the
officer. The only difference between a civil and a criminal
case is, that the successful defendant in the latter is not
entitled to a judgment against the State for his costs. He
is, nevertheless, liable to pay them to the officer, unless our
statute excepts his case from the operation of the general rule.
There are some special provisions of the statute relative to
the fees of the clerks of the circuit courts and sheriffs, in cases
where the defendant is acquitted, but there are none which
apply to the fees of the officers of this court in such cases. The
ninth section of the eighth article of the Constitution does not
exempt the defendant in a criminal prosecution from liability for
costs. It is the opinion of the court that Carpenter is liable for
all the costs made by him in the prosecution of his writ of error.
The motion, therefore, to quash the fee bill will be denied.
Motion denied.
(a) Skinner vs. Jones, 4 Scam. R. 193 ; Morgan vs. Griffin, 1 Gil. R. 566 ; Wells ts
McCuUock, 13 IU. R. 608 ; People, vs. Harlow. 29 111. R. 43.
DECEMBER TERM, 1842. 149
Moore v. The People.
Joshua J. Moore, appellant, v. Norman H. Purple, appellee.
Appeal from, Peoria.
In an action of assumpsit, the defendant failing to plead, a default was entered
to gether with an interlocutory judgment, requiring the sheriff to summon
a jury to assess the plaintiff's damages, &c. A writ of inquiry was issued
and on the same day returned into Court with the following indorsement
thereon : "We the jury summoned in this cause, after being duly sworn, do
assess the plaintiff's damages at $148.96, " which return was signed by
all the jury, and judgment was rendered for the amount assessed by the
jury. The sheriff made no return upon the writ, and the plaintiff appearing
in the Supreme Court, on affidavit filed, had leave to apply to the Circuit
Court to permit the sheriff to make the proper return upon the writ, and
the cause was continued. The Circuit Court allowed the sheriff to make his
return, and tbe same was entered of rceord in that Court, a transcript of
which was filed in the Supreme Court : Held that the Circuit Court did
not err in permitting the return to be made ; that the counsel for the
appellant being in Court when the con tinuance was granted, it was suffi-
cient notice to him of the application to be made to the Circuit Court ; and
that the appellant should have moved, in the latter Court, to quash the
writ of inquiry if he should deemit insufficient.
A writ of inquiry may be executed, be fore the sheriff at any place within his
bailiwick, and a want of notice to the defendant, on executing the writ,
cannot be assigned for error ; nor can tne insufficiency of the writ, the
proper practice being to move the Court below to quash it .
Assumpsit in the Peoria circuit court, brought by the
appellee against the appellant, and heard before the Hod.
John D. Caton, at the October term 1845. The defendant,
failing to plead, his default was entered, and the plaintiff's
damages were assessed by a jury, who assessed the same at
$148.96, upon which the court rendered a judgment for that
amount.
The other proceedings in the court below and in this
court are stated in the opinion.
0. Peters, and E. N. Powell, for the appellant, filed the
following brief :
The appellant, to reverse the judgment in this case, relies
upon the following points and authorities :
150 SUPREME COURT.
Moore v . Purple.
1. By the 15th section of the practice act, Rev. Stat.
415, where a judgment is rendered by default in an action
upon an instrument of writing for the payment of money
only, the clerk may assess the damages. And in all other
actions where a judgment is taken by default, the "plaintiff
may have his damages assessed by a jury in court."
2. This section of the statute clearly does not authorize
a writ of inquiry to issue to the sheriff to assess the dam-
ages in such a case, in vacation or out of court, and it is
questionable whether a sheriff could assess damages even in
open court.
From the record in this case, it appears that the damages
were assessed by a jury summoned by the sheriff, and not in
court. Then, from whence does he derive his authority?
clearly nor from our statute, as the damages are to be
assessed by a jury in court.
3. Has a plaintiff, in such a case, a right to proceed at
common law? If so, the whole of the proceedings are
irregular and defective, because the writ has no return day,
or day certain when the writ was to be returned into court.
1 Tidd's Pr. 573, 574, side paging.
It also does not appear by the return of the sheriff to the
writ, that any notice was given to the appellant of the exe-
cuting of the writ. Notice must be given. 1 Tidd's Pr. 576,
side paging ; 9 Wend. 149.
A. Wheat, for the appellee.
The errors, if such they were, suggested in* the first three
assignments, are cured by the amended transcript filed at
the present term of this court. If the appellant had no no-
tice of the inquisition, the proper course for him to have
taken, would have been to move in the court below to set
it aside. 1 Tidd's Pr. 582 ; 1 Duer's Pr. 636. And this he
could have done at any time during the term. Frink v.
King, 3 Scam. 149. He was in court after the writ of in-
quiry was returned, and prayed an appeal, but did not seek
to take advantage of a want of notice. Therefore, the court
DECEMBER TERM, 1846. 151
Moore v. People.
will presume he had notice, and that the proceedings were
regular, the record showing nothing affirmatively to the con-
trary. Vanlandingham v. Fellows, 1 Scam. 233.
No notice is required to authorize the ^court to permit a
sheriff to amend or make a return to a writ of inquiry or
other process. The motion, though usually made by the
party who will be benefitted by the amendment, is notwith-
standing, really the motion of the officer who amends, or
refrains from so doing at his peril. Therefore, if the appel-
lant in this case had been present, he could not have objected
to the amendment, consequently he was not entitled to a
notice of the motion to permit it ; and such amendments the
court will permit at any time, even after the lapse of years.
Smith v. Hudson, 1 Cowen, 430 ; Emerson v. Upton, 9 Pick.
167 ; Irvine v. Scob'er, 5 Littell, 70 ; Thatcher v. Miller, 11
Mass. 413 ; Hall v. Williams, 1 Fairf. 278 ; Lawless v.
Haskell, 16 Johns. 148 ; and see, also, Rev. Stat, title
" Amendments and Jeofails."
But if the court should be of opinion that such notice was
required, I would suggest, that in this case a sufficient notice
was given, the affidavit upon which the motion of the appel-
lee for a continuance at the last term of this court was based,
specifying the intended application to the court below for
leave to the sheriff to amend his return.
The appellant is mistaken in supposing that the writ of
inquiry does not appear to have been executed. The record
shows it was executed ; and this court has already decided,
that it may be executed out of court. Vanlandingham v.
Fellows 1 Scam. 233.
I see no irregularity whatever in the writ, nor has any
been pointed out, except the omission of a return day. The
writ was evidently intended to be one which the sheriff was
required forthwith to execute, and the omission of the word
forthwith is manifestly a misprision of the clerk. Therefore
it cannot be assigned for error, (Rev. Stat. "Amendment
and Jeofails, )especially since the appellant was in the court
below, after the return of the writ, and made no objection
on this ground.
152 SUPREME COURT.
Moore v. Purple.
The opinion of the court was delivered by
LocKWOod, J.* This was an action of assumpsit, com-
menced in the circuit court of Peoria county, by Purple
against Moore. The declarations contained two counts, one
on a promissory note, the other for money had and received,
and work and labor.
At the October term 1845, the defendant having failed to
plead, his default was entered, together with interlocutory
judgment, and the sheriff was thereupon commanded, that
by the oath of twelve good and lawful men of his bailiwick,
he diligently inquire what damages the plaintiff has sustained
by reason of the premises, and that he return the inquisition,
which he shall thereupon take, to the present term of this
court, together with the names of those by whose oath he
shall take that inquisition.
It appears by the record, that a writ of inquiry was issued
by the clerk to the sheriff of the county, dated on the 17th of
October, 1815, which was returned into court by the sheriff
on the same day with the following indorsement, to wit :
"We, the jury summoned in this cause, after being duly
sworn, do assess the plaintiff's damages at $148.96 ; " which
return was signed by all the jury.
On the return of the writ of inquiry, indorsed with the
verdict, the court below gave judgment for Purple for the
amount assessed by the jury.
Moure prayed and obtained an appeal to, and filed the
record at the last term of this court, aud assigned his errors.
At the last term, Purple filed an affidavit, stating that the
sheriff of Peoria county, through inadvertence, had neglect-
ed to make any formal return upon the writ of inquiry, and
prayed the Supreme Court to continue the cause, to enable
him to apply to the circuit court of Peoria county for leave
to the sheriff to make the proper return upon the writ of
inquiry, and that when made, the same may be certified to
this court, as a part of the record in this case.
This motion was granted.
*YotJNG, J. did not sit in this case.
DECEMBER TERM, 1846. 153
Moore v. Purple.
At this term of this court, Purple obtained leave to file,
as part of the record in this cause, the proceedings of the
circuit court of Peoria county at the May term 1846, from
which it appears that Purple obtained leave of that court, at
the May term thereof, for the sheriff to amend his return to
the writ of inquiry, which was done as follows, to wit: "By
virtue of the within writ, I did, on the 17th day of October,
A. D. 1845, summon the following named persons, to wit,
[naming them,] twelve good and lawful men of the county
of Peoria, who, after being duly sworn well and truly to
assess the plaintiffs damages, returned into court the ver-
dict by them below subscribed, assessing said damages at
$148.96. Smith Frye, Sh'ff. P. C."
At the December term, 1845, of this court, the plaintiff in
error assigned several errors, relying principally on the
grounds that there had been no legal assessment of the dam-
ages, and that the defendant below had received no notice
of the execution of the writ of inquiry. Since the filing of
the proceedings of the circuit court at the May term 1846,
the plaintiff ha8 assigned the following additional errors,
to wit :
1st. That there was no notice of the motion to amend the
record of the circuit court, or for the officer to amend his
return to the writ of inquiry ;
2d. That the writ of inquiry does not appear to have
been executed in open court ; and
3d. There was no sufficient writ of inquiry to authorize
the inquiry into the assessment of the plaintiff's damages.
All the errors relied on to reverse the judgment below can
be disposed of under the last assignment of errors. And,
first, was it necessary that notice should have been given to
Moore to authorize the circuit court to allow the sheriff
to amend his return. We think not, for two reasons.
1st. Amendments by the sheriff to their returns to process
are of course. No resistance could have been made to the
application to amend. [a] Should the sheriff make a false return,
he is responsible for the consequences. 2d. If, however,
(a) Morris vs. Trustees &c. 15 111. B. 270, and notes.
154 SUPREME COURT.
Hoard v. Bulkley.
notice was necessary, Moore, by his counsel, being in court
when the continuance was granted, was fully apprised of the
intention of Purple to move the circuit court for leave to
the sheriff to Amend his return. This was sufficient notice.
The question raised by the second assignment of error was
investigated and decided by this court in the case of Van-
landingham v. Fellows, 1 Scam. 233. (a) We there held
that a writ of inquiry might be executed before the sheriff
at any place within the sheriff's bailiwick, and that should
any irregularities take place, such as want of notice, &c,
the proper course would be to apply to the circuit court
upon affidavit of the facts to set aside the inquisition. Want of
notice cannot, therefore, be assigned for error in this court.
The third error is also addressed to the wrong forum. If
the writ of inquiry was not sufficient, application should
have been made to the court below to quash it. The insuf-
ficiency of the writ of inquiry cannot be assigned for error.
The judgment is affirmed, with costs.
Judgment affirmed.
Samuel Hoard, plaintiff in error, v. Noah Bulkley, de-
fendant in error.
Error to CooJc.
A. sued B. in an action of assumpsit in 1844, but the suit was finally dismiss-
ed at the plaintiff's costs The clerk of the Circuit Court, in taxing the costs,
charged the plaintiff with a jury fee of three dollars. On these facts, the
Circuit Court in 1846 decided that it was improperly taxed: Held, that
jury fee is only taxable in such causes as are tried by a jury.
Motion in the Cook Circuit Court at the November term
1846, made by the defendant in error, to quash a fee bill.
The motion was sustained by the circuit court, the Hon.
Richard M. Young presiding. The cause is brought into
this court upon an agreed statement of facts, which are
briefly stated by the court.
"(a) Vallandigham vs. Lowiy, 1 Scam. R. 241.
DECEMBER TERM, 1845. 155
Hoard v. Bulkley.
The cause was here submitted upon this statement, and
the following argument filed by
S. Hoard, pro se.
The defendant objects to the decision of the court below,
because the 19th section of the Act in relation to jurors is
mandatory, and cannot be construed to apply merely to ac-
tions thereafter to be commenced, but must apply to cases
thereafter to be decided. The law is clearly intended to
create a special fund for the payment of jurors ; and the ser-
vices of jurors were required as much to dispose of all cases
on the docket at the time of the passage of the Act, as those
which might be instituted thereafter. The 19th section re-
quires, that a jury fee shall be taxed in each suit, to consti-
tute a special fund for the payment of jurors. What jurors ?
All that might thereafter attend upon courts. In what
cases ? The cases thereafter to be disposed of. The costs
of a suit cannot be taxed until the services are performed,
and the entire costs could not be ascertained, and the fee
bill made out, until the case was disposed of. If a jury is
required at all, it must be at the final disposition of the case,
and the fund being specially created for the payment of ju-
rors' services, it must be raised to pay for services performed
after the passage of the Act, and from the cases disposed of
thereafter.
For illustration : Suppose that a law should be passed
increasing or decreasing the sheriff's fees for serving a pro-
cess of law, and it became necessary that an alias process
should be issued and served, under what law would the sher-
iff make his return, and calculate his fees ? Clearly, under
the law in force at the time the services were performed.
So in this case, the law in question requires a jury fee of
three dollars to be taxed with the costs of each suit. The
jury attend and perform their services, and the case is tried
and disposed of after the passage of the Act regulating the
mode of creating a fund to pay their services. So that it
would seem most clear, that the court erred in deciding
156 SUPREME COURT.
Hoard v. Bulkley.
that the law was only applicable to cases commenced after
and not before the passage of the Act.
It was contended on the trial in the court below, that the
law in question could not be construed literally, because, to
take a jury fee in all cases, would include Chancery as well
as Common Law proceedings, and no jury being allowed in
the disposition of Chancery suits, it would be manifestly
unjust and wrong to charge a jury fee in suits where their
services were not required. In answer, it may be said, that
the law is designed to create a special fund in the nature of
a tax upon judicial proceedings, to defray a portion of the
expenses necessary to their ultimate disposition, and it mat-
ters nothing whether it be in the nature of a jury fee, or
docket fee. The former law in relation to docket fees had
been so modified, that but a very small amount was received
from that source, and this charge of three dollars was un-
doubtedly directed by the Legislature, to make up the defi-
ciency which had arisen from curtailing the docket fee. The jury
and docket fees are both appropriated to a common purpose, and
being intended as a tax upon judicial proceedings to create a fund
for a specific purpose, it would seem that the fee should be taxed, as
well in Chancery as Common Law cases. But whether this be true
or not in relation to Chancery proceedings, the reasoning is not ap-
plicable to the case under consideration. This cause was on the
Common Law docket, — a jury was in attendance to try the Common
Law suits, and if the plaintiff preferred to abandon his case, and
dismiss it without impaneling a jury, he could not exonerate
himself from the liability which the law imposed upon him, to de-
fray his proportion of the expense incident to the calling of a jury to
attend upon the court during the term at which his suit was disposed
of.
This being an agreed case, in which the parties them-
selves have little or no interest, but made with a view of
having the law determined, and being one, the decision of
which is vastly important to the public, it is hoped the
court will make their decision to cover the entire ground,
and embrace Common Law and Chancery cases.
DECEMBER TERM 1846. 157
Hoard v. Bulkley.
The opinion of the court was delivered by
Treat, J. Bulkley commenced an action of assumpsit
against Shelby in the year 1844. The cause was continued
from term to term without a trial, till March 1846, when it
was dismissed by the plaintiff at his costs. The clerk in tax-
ing the costs, charged the plaintiff with a jury fee of $3.00. On
the foregoing state of facts, the circuit court decided that
the jury fee was improperly taxed. That decision is assigned
for error. The only provisions of the statute which have any
bearing on the question, are as follows : "A jury fee of
three dollars shall be taxed with the costs of each suit, which,
with the docket free provided by law, shall be collected by
the clerk of the court, and paid into the county treasury
there to remain and be held as a special fund for the pay-
ment of jurors." Rev. Stat. 311, § 19. " No docket fee
shall be charged where final judgment or decre e shall be for
costs only, nor when the case shall be decided without im-
paneling a jury, nor in suits which do not originate in the
circuit court," Rev. Stat. 243. § 12. It is the opinion of
this court, that a jury fee is only taxable in such causes as
are tried by a jury.
The judgment of the circuit court is, therefore, affirmed
with costs.
Judgment affirmed.
158 SUPREME COURT.
Lusk v- Harber.
Marquis D. Lusk et al. plaintiffs in error, v. Henry Harber,
defendant in error.
Error to Madigon.
Under the Revenue Law of 1839, if the plaintiff produce the judgment against
the land, the precept and the sheriff's deed for the premises, and prove that
the defendant was in the possession thereof at the commencement of the ac-
tion, a prima facie case is made out.
Before a defendant in ejectment can go behind a judgment against the land for
the taxes due thereon, to show thatthe preliminary proceedings were irreg-
ular he must establish the following facts, to wit: that he or the person
under whom he claims, had title to the land at the time of the sale or that
the title has since been obtained from the United States or the State, (a)
A sheriff's deed for land sold for taxes, based upon a valid judgment and pre-
cept, is conclusive against all but the former owner and those claiming
through or under him.
r Ejectment in the Madison circuit court, brought by the
plaintiffs in error against the defendant in error, and heard
at the October term 1845, before the Hon. Gustavus P.
Koerner and a jury, when a %verdict was rendered in favor
of the defendant.
All the material facts of the case appear in the opinion
of the court
D. J. Baker, and L. B. Parsons, Jr., for the plaintiffs in
error.
The plaintiffs having produced in the court below a
sheriff's deed to themselves, founded on a valid judgment and
precept, the defendant could [not be permitted to question
the title acquired by such deed, or to introduce any evidence
to show irregularity in previous proceedings, until he should
shows that he, or the person under whom he claims, had title
to the land at the time of the sale, or that the title was ob-
tained from the United States or this State after the sale,
and that all taxes due upon the land had been paid by him-
self or the person under whom he claimed. Revenue Act of
1839, § 43 ; Rev. Stat. 448, § 73 ; Hinman v. Pope, 1 Oil-
man, 138 ; Atkins v. Hinman, 2 do. 453-4.
(a) Bestor vs. Powell, 2 Gil. 119, and gtes.
DECEMBER TERM 1846. 159
Lusk v. Harber.
L. Trumbull, for the defendant in error.
1. So much of the Act of 1839 as makes the deed conclu-
sive evidence is repealed by section 113 of the Revenue Act
of 1845. Hence the defendant was at liberty to attack the
plaintiff's title without first showing title in himself.
2. The testimony shows the defendant to have been in
possession of the premises, claiming them as his own at the
time they were sold for taxes, and if it were necessary to
show title in the defendant before he could attack the plain-
tiff's title, a possessory title is sufficient.
The opinion of the court was delivered by
Treat, J. * This was an action of ejectment, commenced
in the Madison Circuit Court, in June- 1844, by Meeker and
Lusk against Henry Harder, for the recoverv of claim 1833,
survey 675, containing 400 acres. The cause was tried be-
fore a jury, at the October term 1845. The plaintiff read in
evidence the record of a judgment of the Madison Circuit
Court, rendered at the September term 1841, in favor of the
State of Illinois and against the tract of land in question,
among others, for the taxes due thereon for the year 1840.
Also, a precept issued thereon, to which the sheriff made re-
turn that he sold the lands, as directed, on the 18th and 19th
day of October, 1841. Also, deed from the sheriff to the
plaintiffs for the premises, bearing date the 8th day of No-
vember, 1843. The plaintiffs then proved that the defendant
was in the possession of the premises at the commence-
ment of the action, and closed their case. The defendant
read in evidence a Patent from the United States to Nicho-
las Jarrot for the premises, and then proved the death of the
patentee, leaving a widow and several children, one of
whom was the wife of Clayton Tiffin, and then introduced
three deeds, first, from Tiffin and wife to the other heirs of
the patentee, second, from the heirs of the patentee to Vital
Jarrot, and third , from Vital Jarrot to Leopold Carrier. The
defendant also offered in evidence book returned by the
♦Wilson, C. J- and Young, J. did not sit in this case.
160 SUPREME COURT.
Lusk v. Harber.
assessor to the clerk of the county commissioners' court,
for the purpose of showing that the premises were not legally
assessed for the taxes for the year 1840, and also the adver-
tisement of the collector, giving notice of the application for
judgment. The plaintiffs then introduced a second book,
returned by the assessor at the same time, and which dif-
fered in some respects from the one introduced by the de-
fendant. The plaintiffs requested the court to instruct the
jury, "that the neglect of the assessor to return two com-
plete copies o£ his assessment books (provided the assessment
be actually made and returned in time to the proper officer,)
to the county commissioners' clerk in one copy, is not such
an irregularity as will render the judgment void ; " also, " that
the validity of the assessment was not affected by the act of
the clerk in giving out the complete copy, if any, to the col-
lector ; " which instructions the court refused to give. The
court, at the instance of the defendant, instructed the jury
" that if they believe, from the evidence, that in the original
list of taxable property returned by the assessor, and filed and
preserved by the clerk in 1840, and which embraced the land
in question, no value was affixed to said land, then said
assessment is defective, and the jury must find for the defend-
ant. " The jury found for the defendant, and the plaintiffs
entered a motion for a new trial, which the court denied.
The plaintiffs prosecute a writ of error.
A new trial should have been granted. According to the
construction given to the revenue laws, under which the
proceedings in this case were had, by this Court in the cases
of Hinman v. Pope, 1 Gilman, 131, and Atkins v. Hinman,
2 do. 437, the plaintiffs made out a prima facie^case, by the
production of the judgment, precept and sheriff's deed for
the premises, and the proof that the defendant was in the
possession thereof at the commencement of the action [a]. As
decided in those cases, it was then incumbent on the defen-
dant to have brought himself within the provisions of the
statute, before he was entitled to go behind the judgment
and show that the preliminary proceedings were irregular.
The provisions alluded to, forbid a party from questioning
(a) See Spehnan vs. Curtentus, 12 111. R. 412, and note ; Morgan vs. Camp, 16 111. R
177, and notes ; Ilolbrook vs. Fellows, 38 m. R. 440.
DECEMBER TERM, 1846. 161
Lusk v. Harber.
the title acquired under a sheriff's deed on a sale for taxes,
unless he first shows that he, or the person under -whom he
claims, had title to the land at the time of the sale, or that
the title has since been obtained from the Uuited States, or
this State. The defendant did not place himself in the pro-
per position to assail the plaintiff's title. He traced up the
title from the Government to Leopold Carrier, but failed
altogether to show that he had any interest in the title vested
in Carrier. For aught that appeared in evidence, he may
have been a mere intruder on the land, without color of
title. Showing no title in himself, and failing to connect his
possession with the title of the former proprietor, he was
precluded by the express terms of the statute, from any at-
tempt to undermine the foundation of the plaintiff's title.
The sheriff's deed, based on a valid judgment and precept,
was conclusive against all but the former owner, and those
claiming through or under him. The statute is so clear and
positive in its terms, that there can be but little difficulty in
determining how the party in possession must establish a
title that will enable him to go back of the judgment and
inquire into the regularity of the previous proceedings. He
may unquestionably do it by the production of documentary
evidence, showing that the legal estate was vested in him,
or the person under whom he claims, on the day of sale.
He may likewise show, that he, or the person under whom
he claims, was in the actual possession of the land at the
time of the sale, claiming title thereto ; for such possession
and claim will raise the presumption of title, and dispense
in the first instance, with the production of the title papers.
He need not show a title to the whole estate. It is sufficient
if he has a substantive legal interest in the land. If the title
is not vested in him, he may connect his possession with the
title by showiug a subsisting tendency between him and the
proprietor. If the title has been obtained from the United
States, or this State, since the sale for taxes, the title deedi
should be exhibited. The party in possession, who can
show in any of these ways that he has a subsisting legal in-
terest in the premises, may go behind the judgment and
GILL. III 11.
162 SUPREME COURT.
Beebe v. Swartwout.
show that any of the material pre-requisites of the law have
not been complied with. If he succeeds in doing it, the title
acquired by the purchaser necessarily falls. Whether these
requisitions were complied with in the present case, need
not now be inquired into. It will be in proper time to de-
termine this when the defendant shows that he has the legal
right to institute the inquiry.
The judgment of the circuit court is reversed with costs,
and the cause remanded for further proceedings.
Judgment reversed.
Silas Beebe, appellant, v. Cornelius J. Swartwout,
appellee.
Appeal from Adams
In a mistake of law, when legal counsel could have been readily procured, the
rule that ignorance of the law is always fatal knows of no exception in the
Civil Law, the source of the doctrime respecting the effect of mistakes in
contracts .
To constitute a breach oi the covenant of quiet enjoyment,there must be a union
of acts of disturbance and lawful title. The covenantee must exert himself,
in some way, to enjoy his possessions, or must affirmatively prove that his
adversary has a paramount title so that his struggle would be unavailing, be-
fore he can sue on the covenant, or obtain redress in a Court of Chancery.
There is a distinction between contracts of an executory character, and those
which are fully executed by deeds or conveyances. In the latter case, there
can be no rescission of the contract unless it has been tained by actual lraud.
Bill in Chancery in the Adams circuit court, brought
by the appellee against the appellant to foreclose a mort-
gage. The defendant below filed a cross-bill, which, at the
hearing before the Hon. Norman H. Purple, at the September
term 1845, was dismissed, and a decree of foreclosure was
rendered as prayer for in the original bill. The defendant
appealed.
An abstract of the pleadings and evidence in the cause
will be found in the opinion of the court.
DECEMBER TERM, 1846. 163
Beebe v . Swartwout.
A. Williams & A. Johnston, for the appellant.
The title to Swartwout is void, because,
1. The power of attorney is executed before the Patent
issued for the land. Gordon's Dig. U. S. Laws, 387, § 1351; 2
Story's U. S. Laws, 1243-44 Laws of 6th May, 1812, §§2, 4 ;
3 do. 1563, § 5 Law of 16th April, 1816.
2. The deed is improperly executed by the attorney in
his own name. 4 Bard. & Har. Dig. 146 ; Elwell v. Shaw,
16 Mass. 42 ; Fowler v. Shearer, 7 Mass. 14 ; Ward v. Bar-
tholomew, 6 Pick. 409,^414.
The adverse possession of Grigsby, (Blackwell) and
others, coupled with the want of title in Swartwout and his
grantee, and the consequent inability of Beebe to obtain
possession, are equivalent to an actual eviction, and would
sustain an action for breach of covenant: There was also
an action of ejectment against Grigsby, in which Swartwout
retained an attorney. An entry by a person having title, is
sufficient, and possession may be lawfully yielded, and will
be equal to eviction. So, also, an inability to obtain pos-
session is equal to eviction. 2 Sugden on Vendors, 84, 85,
96, 97 ; 1 Wheaton's Selwyn, 477 ; Ludwell v. Newman, 6
T. R. 458 ; Hawkes v. Orton, 5 Ad. & Ellis, 356 ; 5 Went.
PL 53, 55 ; Foster v. Pierson, 4 T. R. 617, 20, ; 8 Com. Dig.
359, IX, 11, 2 ; Duval v. Craig, 4 Cond. R. 32 ; Hamilton v.
Cutts, 4 Mass. 352 ; Sprague v. Baker, 17 Mass. 589 ; Park v.
Bates, 12 Verm. 385-6 ; Loomis v. Bedel, 11 New Hamp.
83-4 ; Fitchburg Cotton Co. v. Melvin, 15 Mass. 258 ; Smith
v. Shepard, 15 Pick. 149 , Gore v. Brazier, 3 Mass. 523 1 U.
S. Dig. 686-7, §§ 293, 301, 306, " Covenant," Art, VIII. d. e.
In New York alone has the doctrine of strict technical
eviction been insisted on. In one case, Waldron v McCarty,
3 Johns. 473, the plaintiff was in possession, and had bought
in under a prior mortgage voluntarily. In another, Kortz v.
Carpenter. 5 do. 120, there is no allegation of adverse pos-
session since the sale, and the Court say it cannot be distin-
guished from the former.
In Bumpus v. Platner, 1 Johns.. Ch. R. 213, Chesterman
v. Gardner, 5 do. 33, and Abbott v. Allen, 2 do. 519, the
164 SUPREME COURT.
Beebe v. Swartwout.
ground of refusing relief is, that the parties has been long
in undisturbed possession, and were not threatened. In the
last case, 2 do. 525, the court expressly declines to lay down
any rule, and limits the decision to the special circumstances of
the case.
In Gouveneur v. Elmendorf, 5 Johns. Ch. R. 81, the Court
proceeds on the ground that it was plainly a speculation
trade ; land warrants, an uncertain but flattering investment
of capital ; $8000 for 19000 acres of land, with $4 to $5 an
acre ; no covenants except against grantors and heirs ; fully
advised of all the titles, neglect of euits, &c.
Bat whatever may be the rights of the parties in a court
of Law, where strict and technical rules may apply to them,
in a court of Equity, which is to afford relief in cases where
the law docs not suffice for purposes of justice, to do right
between man and man, and to prevent irreparable mischief,
courts of Equity will and do interpose. The}7 are not re-
strained even to cases and precedents already made, but
they extend their aid and to new cases and circumstances, which
are analogous in principle to those already adjudicated>
Their jurisdiction shapes and accomodates itself to the
various and ever changing pursuits and interests of mankind,
and to the unexpected and novel relations which they pro-
duce. 1 Story's Eq. Jur. §§ 32, 29 ; 2 do. §§ 863, 864,
868, 871, 872, 884, 926, 928, 929, 694.
New cases, in which the court has extended its jurisdiction to
prevent irreparable mischief. Ambler's Rep. 66, 67 ;
Chcdworth v. Edwards, 8 Vesey, Jr., 50 ; Lloyd v. Gordon,
2 Swanston, 100 ; Osborn v. Bank IT. S., 5 Peters' Cond.
R. 741.
Equity will interfere to relieve a purchaser who has bought
under a mistake, from paying his money for nothing, even
where there is no fraud nor warranty. It seems a question,
whether they will not relieve, both for mistake of law and
fact, and when it is necessary for purposes of justice, they
construe it either way. Willan v. Willan, 16 Vesey, 72;
Bingham v. Bingham, 1 Vesey, Sr., 127 ; Corking v. Pratt
lb. 400 ; Shish v. Foster, lb. 88. American cases where
DECEMBER TERM, 1846. 165
Beebe v. Swartwout.
Equity has relied against mistake. See the doctrine well
reviewed in the opinion of the Vice chancellor. Chaplin
v. Laytin, 6 Paige, 196 ; and Senator Paige, 18 Wen-
dell, 407.
But if "the court will not interpose to rescind the contract,
it will at least not interfere where its aid is asked by the pur-
chasers to collect the money, where he has conveyed no title
to the vendee.
In Johnson v. Gere, 2 Johns, ch. R. 546, where a suit was
brought for collection of the purchase money, the Court
stayed the suit because an ejectment was pending for the
land. Suppose the ejectment had terminated in the loss of
the land by the vendee, would not the court have made the
injunction perpetual? And what necessity is there to do a
nugatory act ? Why bring a suit against adverse possessors
without title to maintain it ? Why enter on a possession,
vacant, between the outgoing and incoming of tenants, to be
expelled by the right of prior possession? Gaines v. Bu-
f'ord, 1 Dana, 492 ; 1 Story 's Eq. Jur. § 64e, difference of
position in equity of plaintiff and defendant.
In Kerr v. Shaw, 13 Johns. 236, it is said that recovery
in ejectment, without actual ouster, does not amount to evic-
tion. It is clear from a reference to the case above of John-
son v. Gere, that the courts of equity, in such a case, would
at least enjoin the collection of the purchase money. The
common law courts of New York may be technical, but
they do not so much control the equity courts as to render
them powerless.
Failure of title, without eviction, is a good defence to suit
for the purchase money. Frisbie v. Hoffnagle, 11 Johns. 50.
A purchaser of land, in possession, without either actual
or virtual eviction, is entitled to the aid of a court of equity
on showing that his vendor's title is defective, that an adverse
title is asserted, and that the vendor is insolvent. Steel v.
Pride, 1 Speer's (S. C.) R. 119 ; Hodges v. Connor, lb. 120,
125-6; Simpson v. Hawkins, 1 Dana, 318.
In the last case, the defect of title is a conveyance from
an administrator who was not qualified under the laws of the
166 SUPREME COURT.
Beebe y. Swartwout.
State, and who assumed to sell under a will. The defect is
analagous to our own.
0. H. Browing & N. Bushnell, for the appellee.
1. The covenant for quiet enjoyment relates only to rights
existing at the time the covenant is made/ Ellis v. Welch,
6 Mass. 246; 2 Saund. 178 a, note A. and 181, note 10;
Grannis v. Clark, 8 Cowen, 36. And it goes to the posses-
sion and not to the title. It is a technical rule, that nothing
amounts to a breach of the covenant but an actual eviction,
or disturbance of the possession of the covenantee. 4 Kent,
471 ; Waldron v. McCarty, 3 Johns. 471 ; Kortz v. Carpen-
ter, 5 do. 120 ; Kerr v. Shaw, 13 do. 236 ; Prescott v.
Trueman, 4 Mass. 627 ; 4 Halsted, 28, 141 ; 8 Johns. 198.
And the eviction, disturbance, or ouster, must be by a per-
son having the paramout title. It relates to lawful inter-
ruptions, and not to the acts of strangers and wrong doers.
Dudley v. Folliott, 3 T. R. 583 ; 2 Tho 's Coke, 260-1 ; Ellis
v. Welch, 6 Mass. 246, 250, 252; Greenby v. Kellogg, 2
Johns. 1 ; Wotten v. Hill, 2 Saund. 177, notes 8, 10 ;
Webb v. Alexander, 7 Wend. 281, 284; Lansing v. Van
Alstine, 2 Wend. 565, (note). The only exception to this
rule, is where the covenator himself enters tortiously and
without title. This is a breach. Corus' case, Cro. Eliz.
544 ; Crope v. Young, 2 Show. 415 ; Dyetc v. Pendleton, 8
Cowen, 727 ; Sedgwick v. Hollenback, 7 Johns. 380 ; Floyd
v. Tompkins, 1 T. R. 660. And it is not sufficient to show,
in order to constitute a breach of the covenant of warranty
or of quiet enjoyment, that there is an outstanding title, or
that there are persons in possession, holding adversely ; But
it must be shown that such persons are in under that title,
and that in consequence thereof the covenantee can not
get possession. Jenkins v. Hopkins, 8 Pick. 346, 350.
And when there has been an eviction by suit at law, it must
appear affirmatively that the covenantee was thus evicted by
a paramout title. Kelly v. Dutch Church, 2 Hill 's [N. ¥.]
R. 105, 111,113, 114; Grannis v. Clark, 8 Cowen, 36. It
is the general rule, that a covenant of warranty is not broken
DECEMBER TERM, 1842. 167
Beebe v. Swartwout.
till eviction or ouster under paramount title. Twambly v.
Henly, 4 Mass, 441, 442 ; Bearce v. Jackson, lb. 408, 410.
And the party alleging the paramount title must prove it.
Emerson v. Proprietors, &c. Mass. 464, 465 ; 2 Hill's ( N. Y. ) R.
113, 114 ; Chappel v. Bull, 17 Mass. 213, 218. And where there
has been no possession there can be no eviction as is said. 17
Mass. 219. But a party, whether in possession or out of
possession, under a covenant of warranty, or of quiet enjoy-
ment, may voluntarily yield to a paramount title, and this
will be an eviction within the meaning of the covenant.
But the burden of the proof is upon him, to show that the
title was in fact paramount, while an eviction at law would
be conclusive proof of that fact. Hamilton v. Cutts, 4
Mass. 349, 352 ; Greenwault v. Davis, 4 Hill's R. 643-5-6 ;
Stone v. Hooker, 9 Cowen, 157. Or being in possession he
may buy in an outstanding title, or perfected incumbrance,
under which possession might have been obtained, and on
which demand of possession has been made. Sprague v.
Baker, 17 Mass. 586, 590 ; White v. Whitney, 3 Mete. 81,
88. But the mere existence of the paramount title, or of the
right to possession in a third person, is not sufficient. Some
particular act of disturbance must be shown, as demand of
possession, &c. ; otherwise the covenantee has no right to
abandon the premises, or buy in an outstanding claim. 4
Mass. 352 ; 17 do. 590. Francis' case, 8 Coke, 89 ; 2 Saund.
181, note 10. If the lands are unoccupied, it is sufficient
that a third person exercises acts of ownership under para-
mount title ; but if they are occupied, there must be an actual
ejectment or disturbance. Saint John v. Palmer, 5 Hill's
( N. Y. ) R. 600. And being in possession of land with a
claim of title, is not sufficient to prove the title in favor of a
covenantee, in a covenant for quiet enjoyment. Kelly v. Dutch
Church, 2 Hill's (N. Y. ) R. 112, 113.
n. But it has been decided in Vermont, that in order to
constitute a breach of the warranty of title, it is not necessary
to prove an eviction, where the covenantee, never had pos-
session ; that to maintain tne action on the covenant, it is
only necessary to commence an action of ejectment against
168 SUPREME COURT.
Beebe v. Swartwout.
the person in possession, give notice to the warrantor,
and fail to establish the title. Park v. Bates, 12 Verm.
381. To this we answer : 1. That decision is a mere
obiter dictum, as the point did not properly arise in the
case. 2. It is not sustained by the authorities on which it
was based, to wit, Ludwell v. Newman, 6 T. R. 458 ; 5 Went.
PI. 53 ; Hawkes v. Overton, 31 Eng. Com. Law R. 356.
Now these are all cases on covenants for quiet enjoyment
in leases where the possession was refused or disturbed by
the lessor ; a case in which, as has been already shown, it is
not necessary to show, an eviction or disturbance under title.
3. An attempt to apply this decision to the present case, is
to confound the covenant of warranty of title with the cov-
enant for quiet enjoyment ; a covenant which goes to the title
with a covenant which goes only to the possession, and
which is broken only when eviction, or disturbance, or ouster
occurs under title. 4. The decision may have been right, as
it related to the particular case, as the warrantor was bound
by his covenanat to shown title, and being vouched, a decision
against his title was conclusive on him. Somerville v. Ham-
ilton, 4 Peters' Cond. R. 436 ; 2 Thomas' Coke, 245, and
note A.
III. If the case of Grannis v. Clark, 8 Cowen 36, is
used against us, we reply : In that case, the word demise
in a lease for years is a covenant of title in the lessor, and of
power to make the lease. The principle on which the de-
cision was made, was that the covenant was broken as
soon as made. The case referred to in the decision of the
court ( 6 Johns. 50, ) was of a covenant broken immediately ;
the lessee is not, in such case, bound to enter the premises,
and commit a trespass. The covenant in Grannis v. Clark
is not therefore a covenant for quiet enjoyment, properly so
called. The word demise imports a covenant of power to
lease, ( 1 Saund. 332, note 2 ) and is analogous to a covenant
of power to sell contained in a conveyance in fee, which is
similar to a covenant of seizin, and, like a covenant of sei-
zin, is broken as soon as made, ( Howell v. Richards, 11
East, 633, 641 ; Sedgwick v. Hollenback, 7 Johns. 376 :) while
DECEMBER TERM, 1842. 169
Beebe v. Swartwout.
the covenant of warranty and quiet enjoyment are wholly
prospective, and run with the land, (4 Kent's Com. 470-471) ;
and the covenant of quiet enjoyment, being thus broken only
where there is a union of paramount title and disturbance,
the covenantee is bound to enter if he can peaceably, though
he thereby commit a trespass. Grannis v. Clark, 8 Cowen,
36, 40; Greenwault v. Davis, 4 Hill's (N. Y.) R. 644;
Kortz v. Carpenter, 5 John. 120. And for the same reason
that a covenant against incumbrances is broken as soon as
it is made, (^ufts v. Adams, 8 Pick. 547,) the covenantee,
where the incumbrance ripens into title, is not bound to enter
and commit a trespass. Jenkins v. Hopkins, 8 Pick. 349.
And the case of Howell v. Richards, 11 East, 633, 641-2,
shows clearly the distinction and the true reason for the
distinction, between the covenant for quiet enjoyment and
the covenant of warranty of title.
IV. But it is said that in this case there was and is an
adverse possession in Beebe and others under title, this pos-
session being prima facie evidence of title, to which we an-
swer: 1. The law requires, to constitute a breach, two facts;
1st, possession, and 2d, title. The argument requires proof
of but one fact, the possession ; for if the title is to be in-
ferred from the mere possession, then, in effect, the mere
possession constitutes the breach. It is not enough, how-
ever, to show possession ; the title and the nature of it, and
the person in whom it [resides, must be specifically shown in
pleading. Grannis v. Clark, 8 Cowen, 36 ; 5 Went. PI. 66.
Nor is the possession under claim of title sufficient evidence
of title to constitute a breach of this covenant. Kelly v.
Dutch Church, 2 Hill's (N. Y.) R. 112-113. So in relation
to the covenant of warranty of title. Jenkins v. Hopkins,
8 Pick. 346, 350 ; Sprague v. Baker, 17 Mass. 586. 2. The
defendants have in their deed set out, by abstract in the
bill of exceptions, their title papers, which in 'act, show
that they had no title. 3. The defendants and others have
shown neither paper title nor the extent of their occupancy ;
and the doctrine that possession is prima facie evidence of
title relates only to actual occupancy, in the absence of
170 SUPREME COURT.
Beebe v. Swartwo'ut.
paper title. 2 Black. Com. 196. As to mixed possession
under true and false titles, see Green v. Liter, 3 Peters'
Cond. R. 170.
Where the defendant relies solely on possession with an
assertion of title, his seizin and possession is confined to
actual occupancy, or enclosure and improvements. Jackson
v. Shoemaker, 2 Johns. 230 ; Jackson v. Camp, 1 Cowen,
605, 609;* Jackson v. Woodruff, lb. 276.
V. As to the measure of damages. On a covenant of war-
ranty, the measure of damages is the value of t°he J and at the
execution of the deed, and the rule is the same on a breach
of the covenant for quiet enjoyment. 4 Kent's Com. 476.
And if the eviction or ouster be of only a part of the
premises purchased, the measure of damages in the covenant
for quiet enjoyment is the relative value of the land lost to
the whole — the principal with six years interest. Wager v.
Schuyler, 1 Wend. 533 ; Webb v. Alexander, 7 do. 286.
And in relation to a covenant of title, the amount paid to
extinguish an outstanding paramount title, is the measure of
damages. Leffingwell v. Elliott, 10 Pick. 204 ; Thayer v.
Clemence, 22 do. 490.
VI. Now it is well settled that at law, in the absence of
fraud, the grantee can have no remedy beyond his covenants.
Frost v. Raymond, 2 Caines, 188 ; Bree v. Holbeck
Doug. 654 ; Emerson v. County of Washington, 9 Greenl*
88. The fact that the grantee was, at the time of the con-
veyance, in possession of a part of the premises, is immaterial.
Unless he can show that he was imposed upon and induced
by improper means to accept of the deed, he must look only
to his covenants. Jackson v. Ayres, 14 Johns. 224 ; Fitch
v. Baldwin, 17 do. 161, 165. And this rule of law is
adopted to its full extent in courts of Equity. Where there
are covenants, the ground of relief beyond those covenant8
is fraud. Abbott v. Allen, 2 Johns. Ch. R. 519, 523-4 J
Woodruff v. Bruce., 9 Paige, 443-4 ; Gouverneur v. Elmen-
dorf, 5 Johns. Ch. R. 79, 85, 87 ; Chesterman v. Gard-
ner, lb. 29 ; 1 Sugden on Vendors, 554-5 ; 2 do. 103 ;
Parkum v. Randolph, 4 How. [Miss.] R. 435, 550, 452.
DECEMBER TERM, 1846. 171
Beebe v. Swartwout.
Nor does the fact that there was an adverse possession at
the time of the sale make any difference where there was no
fraud. Gouverneur v. Elmendorf, 5 Johns. Ch. R. 87.
And particularly where both parties ;knew of the posses-
sion, in which case there could be no fraud. Whitney v..
Lewis, 21 Wend. 133. Where the deed has been made, and
the bond and mortgage taken for the purchase money, on a
bill to set aside the bond and mortgage for the failure of title?
the court will look at the convenants in the deed to see if they are
broken. If they are not broken, no relief will be granted even
though it appear that there is an outstanding title which may be
paramount to that conveyed by the deed. A court of equity is
no place to try legal titles. Bumpus v. Platner, 1 Johns. Ch.
R. 213, 218 ; Prewit v. Kenton, 3 Bibb 280. Nor will the
court interfere to stop the payment of purchase money to prevent
circuity of action when the question depends upon a legal title,
brought up directly by the bill and which question has not been set-
tled at law. Abbott v. Allen, 2 Johns. Ch. R. 524. And even
if the covenants are broken, and the case is one for the consid-
ation of a court of equity, the court will act on the principle
of cross actions and decree offset to the extent only of the breach.
Simpson v. Hawkins, 1 Dana, 305.
As to the alleged parol contract. No parol evidence of a
verbal contract before or at the time of the deed is admissible to
materially vary the written contract. Lane v. Sharp, 3 Scam.
566. Whatever was said between the parties before or at the
time of the making of the deed was merged in the deed. Step-
hens v. Cooper, 1 Johns. Ch. R. 425 ; Parkhurst v. Van
Cortland, lb., 273.
The opinion of the court was delivered by
Koerner, J.* This case was heard at the September
term of the Adams Circuit court, A. D. 1845, when the
court dismissed the cross-bill filed by Beebe, the defendant
below, and rendered a decree of foreclosure in favor of
* Young, J. did not sit in this case.
172 SUPREME COURT.
Beebe v. Swartwout.
Swartwout, the original complainant below. The dismissal
of defendant's cross-bill, and the rendition of decree in favor
of complainant, Swartwout, by the court below, is now as-
signed for error. For a proper understanding of the decis-
ion of the court in this case, I have deemed it necessary to
give the following abstract of the pleadings and evidence in
the cause :
On the first of June, 1840, Swartwout filed his bill in the
Adams circuit court, to foreclose a mortgage executed by
Beebe to him upon the south east quarter of section four,
township three south, eight west, for the sum of $1206. Beebe
answered the bill, stating in his an wer most of the facts set
out in the cross-bill afterwards filed, and Swartwout filed his
replication. Beebe subsequently filed a cross-bill, leave ha-
ving been obtained for that purpose, which alleges, that he
purchased from said Swartwout the said tract of land on the
7th day of September 1837, paid him $300 in cash, and gave
mortgage and bond for the balance, $1200 ; the whole being
$1500. payable in instalments. That Swartwout and wife
executed a deed to said Beebe, on the said 7th of September,
with a covenant, " that they would warrant and defend the
premises in the quiet and peaceable possession of said Beebe,
his heirs and assigns, against themselves, their heirs, and
against all and every person and persons whomsoever, law-
fully claiming and to claim the same." That before and
after said deed was made, as well as at the time, said Swart-
wout agreed to put said Beebe in the quiet possession of said
land before the instalments should become due in the mort-
gage, and that payment of them should not be demanded
until possession was given. That before the said sale, and
at the time thereof, Beebe was in possession of forty acres of
the said land, claiming under another and a different title
from Swartwout, and the remaining one hundred and tweuty
acres were, and had been for some time previous, in the
possession of Amos Beebe, Rial Crandall and William Black-
well, respectively, claiming also under a title different from
and independent of said Swartwout's title. That in Jan-
uarv, 1838, Swartwout commenced in Beebe's name an action
DECEMBER TERM. 1846, 173
Beebe v. Swartwout.
of ejectment to recover possession from Grigsby of a part of the
land, but discontinued it afterwards. That Swartwout has
never put him in possession of the land, nor made any other
attempt to do so, and that he retains possession only of the
forty acres, which he held under a different and independent
title before he had anything to do with Swartwout at all.
That before and at the time of the sale, Swartwout falsely
and fraudulently represented that he had a good title to the
land, and that he, Beebe, bought it, relying on that repre-
sentation, paying a price for it, which was a full equivalent
for the land, with a clear and indefeasible title, and that it
was so understood at the time. That Swartwout, although
requested, hath always failed and refused to exhibit his title
and he believes the said title is not good. That in Swart-
wout's deed to Beebe, his chain of title is recited as the same
granted to Benjamin Hobbs, the patentee, and conveyed by
deed from him by his attorney to Francis Gantz, jr., by like
deed from him ; said Gantz on the 9th of May, 1818, granted
to Samuel Chard, and by deed, on the first of August 1837,
from G. W. Snedeker and his wife, heirs of Chard, to- Swart-
wout. That in the records of Adams county, transcribed
from Madison county, is a power of attorney from Ben-
jamin Hobbs to John L. Bogardus, dated 5th of August,
1815, made before the patent issued, and purporting to
authorize Bogardus to sell said land when the patent
should issue, and there is also on said records a deed
from Bogardus to said Francis Gantz, Junior, which re-
cites said power of attorney, and purports to convey the
land, which said deed, however, is signed by said Bogardus
in his own name, the name of the principal appearing in the
recital only ; and there is also on said record in Adams
county, a deed from Francis Gantz, jr., to Samuel Chard,
conveying this land among other tracts, dated 10th May,
1818, but of which the certificate of acknowledgement is the
9th of May, 1818. That Swartwout is embarrassed and in-
solvent, and that Beebe fears he will lose what he has paid
him, and all that he may be compelled to pay. That Swart-
wout has commenced suit on the mortgage, alleges the sub-
174 SUPREME COURT.
Beebe v. Swartwout.
sequent proceedings thereon, and concludes with pray-
ing that Swartwout be enjoined, be compelled to produce
his title and put Beebe in possession, or that the con-
tract be rescinded, and money repaid, and for general
relief.
To this cross-bill Swartwout filed his answer, in which he
admits the execution of the deed and the covenant as stated.
Denies any understanding as to possession, except what is
expressed in the covenant in the deed, either before, at, or
after the execution of the deed. Denies that at any time was
mentioned or agreed upon for giving Beebe possession, but
avers that he was placed in possession from the time of mak-
ing the deed, according to the true intent and meaning of
the covenant therein, and has not been disturbed in, or
evicted from said possession. He alleges that he believes it
to be true, that Amos Beebe was in possession of forty acres
at the time of the sale, but that said Beebe never pretended
to claim under any other title at said time, and avers that
subsequent to the purchase, and in accordance with the
agreement between this defendant and said complainant, said
Amos Beebe surrendered the possession to said complainant,
Silas Beebe, &c., and also admits an agreement between
himself and said Silas Beebe at the time of the purchase in
relation to fifty acres, then represented by said Silas Beebe
to be in possession of William Blackwell, by which Beebe
was to bring an ejectment against Blackwell, and if it proved
unsuccessful, was to deduct a proportionate amount from the
purchase money; and if he, Swartwout, should be able to pro-
cure possession of said Blackwell's tract within a reason-
able time, he was to deliver it to Beebe ; and he avers that
the possession of said Blackwell's tract became vacant and
he tendered it to Beebe, who refused it. That subsequently
Grigsby got into possession, and Beebe brought the action
of ejectment against him. Denies that he was to bring the
action of ejectment, and denies any concern with it, except
the employment of WiUiam Darling at the request of Amos
Beebe, complainant's father, to assist the counsel of Silas
Beebe, and alleses that he exercised no kind of control over
DECEMBER TERM, 1846. 175
Beebe v. Swartwout.
said suit, and that if said suit was dismissed, it was without
the knowledge, consent, or advice of him, the said Swart-
wout. Admits that at the time of the purchase, besides the
parts in possession of Amos Beebe and William Blackwell,
that Silas Beebe, the complainant, had possession of forty
acres, and Rial Crandall had possession of thirty acres, and
avers that complainant had notice of the possession of all
these persons at the time of the purchase. Alleges that he
represented his title to be good and perfect, and that it is the
same recited in his deed. Avers that he exhibited his chain.
of title to Beebe before the purchase, who examined and
approved it, and has had it ever since, and purchased on the
strength of said examination, and denies that he made any
false or fraudulent representations. Admits that he is em-
barrassed and cannot pay his debts, but that he could pay his
debts if other people (especially the complainant,) would pay
him what they owed him, &c. Admits ihe payment of the
$300, as alleged in the bill, and the suit on the mortgage for
the balance of §1200, and resists the relief prayed for.
Beebe filed a general replication to the answer.
The deposition of Benjamin Grigsby proved, that on the
5th of September, 1837, all the improved land in the south
half of section four, township three, eight west, (embracing
this, south east, quarter and the south west quarter) was
occupied by Amos Beebe, Silas Beebe, Rial Crandall,
Steele and Blackwell, except twenty two acres in the south
west corner, (not in this quarter,) which was then unoccu-
pied, but had been and was afterwards occupied by tenants
of John B. Young. The two Beebes and Crandall claimed
in their own right, Steele claimed as tenant to Silas Beebe,
Blackwell as tenant to Slayton, who was guardian for Sin-
gleton's heirs, Crandall had possession of fifteen or sixteen
acres, claiming sixty, lying in both quarter section, Black-
well had about eighteen acres, claiming fifty, lying in both
quarter sections. The other depositions are pretty much to
the same effect. It appears further, that it is agreed between
the two parties that the possession of the several tracts or
parcels of land set out in the depositions by Young, Cran-
dall, Blackwell and Steele, had been so held- at the time of
176 SUPREME COURT.
Beebe v. Swartwout.
the sale from Swartwout to Beebe, and from that time ever
since, and also, that such adverse possession was known to
Beebe at the time of the purchase. It is also admitted upon
the record, that a judgment to the amount of about $400,
exclusive of costs, was standing in Adams county against
Swartwout unsatisfied. That execution had been issued to
the sheriff of said county, and after due search and inquiry
it was returned " no property found." The abstract of deeds
from the Recorder's Office was admitted, on which appears
the chain of title to Swartwout, already set out, being the
only title to him of record ; also, copies of the power of
attorney to Bogardus and the deed from him to Gantz. In
the abstract there appear a number of other deeds to the
whole and to parts of the land, which are unconnected with
Swartwout's title, but at the same time showing no title in
the persons in possession.
From the pleadings of the parties and the evidence ad-
duced as shown by this abstract, we think the following case
to be established : That Startwout's title when he conveyed
to Beebe was technically defective, (<z) so far at least as the
execution of the deed by Bogardus, who was an agent merely,
is concerned, that at the time when he covenanted for quiet
enjoyment, both porties knew the fact that other persons
were actually in possession of portions of the premises, not
claiming from the covenantor, but that Swartwout did not
know that they set up any title ; that there was no other
agreement between the parties legally binding upon Swart-
wout, as to the surrendor of possession, or forebearance to sue
until possession was obtained by Beebe ; that Swartwout,
however, employed assistant counsel in an action of eject-
ment brought by Beebe against one of the parties in posses-
sion, which suit Beebe had dismissed without the consent
or knowledge of Swartwout : that some time elapsed between
the commencement of the negotiation and its completion,
and that the title papers of Swartwout were shown to Beebe
and examined by him, the deed to the latter, moreover, re-
citing the chain of title ; that no fraud was practiced by
Swartwout, nothing appearing to induce the belief that he
did not think his title as good, as Beebe must have thought
(n) Blears vs. Morrison, Beechers Breese R. 223 ; Pensoneau vs. Blakely, 14 111. R.
16 ; Lessee of Clark vs. Courtney, 5 Pet. U. S. R. 351.
DECEMBER TERM, 1846. 177
Beebe v. Swartwout.
it was, at the time he purchased ; that Swartwout is insolvent,
or at least unable to answer in damages in an action of cove-
nant, should that be successfully maintained against him in
a court of Law ; and lastly, that the persons in possession
have no better or paramount title to the one conveyed by
Swartwout, nor indeed a connected paper title of any kind.
We are now called upon to pronounce the law arising on
these facts, and to decide whether Beebe, the defendant in
the bill of foreclosure, but complainant in the cross-bill, is
entitled to the relief for which he had asked. Before, how-
ever, advancing to the main legal points in the case, I deem
it proper to dispose of some other questions of a preliminary
character. There being no proof, in the opinion of the court,
of fraud having been committed by Swartwout, or of any
misrepresentations having been made by him to complainant
Beebe, it is clear that a court of Chancery would have no
jurisdiction, were it not for the fact of defendant's inability
to pay damages in case a recovery were had against him on
the covenant. It is this circumstance alone which confers
jurisdiction on the Chancellor, under the head of preventing
irreparable mischief. Beebe's counsel, it is true, have
sought to invoke the aid of Chancery, on the ground of mis-
take, insisting that when a person has paid money for
nothing by mistake, whether such mistake was one of fact
or even of law, Equity will always interfere and prevent the
collection of the purchase money. It will be observed, how-
ever, in the first place, that Swartwout does not seek to
collect the purchase money in this case ; he simply asks to
have the equity of redemption foreclosed if the purchase
money is not paid. He cannot obtain a judgment against
Beebe and pay himself out of the general property of
Beebe. If he obtained any money at all it is out of the spe-
cial fund, the land, upon which he holds a mortgage. In this
view of the case, the failure of title in his grantor can hardly
affect him. His equity of redemption is worthless, if the
legal title to the premises fail. In the next place, it is clear
that in this case there was no mistake in fact, inasmuch as
the proof shows that Beebe examined the title papers and
GIL. in. — 12.
SUPREME COURT.
Beebe v. S\vartwout.
had full knowledge of the existing possessions at and before
the time of the sale. Although it may be conceded, that in
some particular and doubtful cases, courts of Equity have
construed mistakes of law into mistakes ^of facts for the pur-
pose of preventing gross injustice, yet it would be doing vio-
lence to every rule of law to say that a failure of perceiving
the legal defect in the execution of a deed, as was the case
here, amounted to a mistake of fact. (a) In a mistake of law,
where legal counsel could have been readily procured, the
rule that ignorance of law is always fatal, (error juris nocet,)
knows of no exception in the civil Law, from which we have
adopted the general doctrine respecting the effect of mis-
takes on the contracts and legal obligations of parties, and I
am not aware that the courts of chancery in Great Britain
or this country have ever changed this well established prin-
ciple. This, then, being neither a case of fraud or mistake,
but one in which chancery only acts upon the principle that
the remedy at law, if obtained, affords no actual but merely
nominal relief, on account of the inability of the defendant
to pay the damages, it seems necessarily to follow, that we
have to divest ourselves from all other extraneous circum-
stances, and that we have to confine ourselves to the sole
question, whether Beebe, if he were to sue at law, would
recover on the covenant of quiet enjoyment ; or in other
words, whether the facts of the case as presented here, con-
stitute a breach of the covenant of quiet enjoyment.
As far as one branch of this controversy is concerned,
there is but little difficulty in settling it. I refer to the al-
leged breach of covenant for quiet enjoyment of the forty
acres of the land in question, which was in possession of
the vendee, Silas Beebe, when he purchased of Swartwout.
Whatever title he may have had in himself at that time, and
however adverse his possession of any right of Swartwout's
to the land, he is estopped from setting it up now against his
vendor. By taking a deed from his grantor, [he conceded to
him as far as respects any liability under the covenant at
least, a superior title. In 17 Johns. 166, the court says:
"That it can never be permitted to a person to except a
(d) Shafer V3. Davis, 13 III. R. 397 ; Bailey vs. Moore, 21 111. R. 170.
DECEMBER TERM, 1846. 179
Beebe v. Swartwout.
deed with covenants of seizin, and then turn round upon his gran-
tor and allege that his covenant is broken, for that at the time
he accepted the deed, he himself was seized of the premises."
What is there said of a covenant of seizin does apply, in my
opinion, with still greater force to a covenant of quiet enjoyment.
I will now pass to the principal point in the case, in the dis-
cussion of which, as indeed of all other questions in this case,
counsel on both sides have exhibited an unusual degree of re-
search. Our attention has been directed to a very great num-
ber of authorities, which in justice to the counsel and their cause,
I have examined with some care.
It may not be unprofitable in the outset to advert to a few
general principles respecting the nature of the covenant for quiet
enjoyment, and the evidence necessary to establish a breach of it.
A covenant for quiet enjoyment, is of a prospective character ;
it is in the nature of a real covenant, runs with the land, descends
to the heirs, and vests in assignees and purchasers, (a) 4 Kent,
471. It is one which goes to the possession and not to the title.
5 Johns. 121. To constitute a breach of it, an actual ouster
and eviction is necessary. 4 Kent, 471. The covenant for
quiet enjoyment requires the assignment of a breach by a specific
ouster or eviction by paramount legal title. 4 Kent, 479 ; 3
Johns. 471 ; 2 Johns. Ch. R. 522. To sustain an action
for the breach of the covenant for quiet enjoyment, it must ap-
pear that the grantee has been evicted by title both lawful and
paramount. 'A Hill's (N. Y. ) R. 105. There must be an actual
eviction or disturbance of the possession of the covenantee. 5
Johns. 121. (6) Most of the principles here stated are also
applicable to the covenant of warranty, and as a general thing,
are familiar to courts, and the profession. The great difficulty
arising in this as in many other cases, consists in this, that
courts have departed (and I think not improperly, ) from the
stern technical rules of requiring actual ouster and eviction in
cases both of breach of warranty and covenant for quiet enjoy-
ment, and have held many acts, or rather the concurrence of
certain acts, as being equivalent to actual eviction by due process
(a) Brady vs. Spurk, 27 111. B. 479 ; Baker vs. Hunt, 40 IU. B. 266.
(6) Lisk vs. Woodraff, 15 111. R. 19.
180 SUPREME COURT.
Beebev. Swartwout.
of law. It is not surprising that in deciding what shall be con-
sidered not as acts of eviction, but as acts equivalent in law to
actual eviction, and what shall not be so considered, some conflict
of views has occurred, so much so, that it may almost be said,
that where no actual legal eviction has taken place, no general
rule applicable to all cases can be laid down, and that each par-
ticular case must be determined on its own merits.
It is not contended here, and indeed the circumstances of the
case forbid the idea, that the appellant was actually ousted from
the land purchased by persons having better or paramount title ;
but the position assumed by counsel, as I understand it, is this :
"The adverse possession of Grigsby aud others, coupled with
defect of title in Startwout and his grantee, and the cousequent
inability of Bebee. to obtain possession, are equivalent to an
actual legal eviction, and sustain an action for breach of cove-
nant." In support of this proposition, we have been cited to
very numerous authorities, some of which, and which are those
I consider the most favorable for this position, I will now
proceed to review. The case of Ludwell v. Newman, 6 Term
Reports, 458, I find to be a case where the disturber of the pos-
session claimed under a prior lease from the defendant who was
the covenantor. The case in 4 Mass. 352, was a case where
the possession had been demanded of the covenantee, by one who
held a prior mortgage from the original grantor, under whom,
though remotely, the covenantee claimed. The case of Hawkes
Orton, 5 Ad. & Ellis, 359, was a case where the breach of
the covenant was committed by the covenantor himself. The
precedent in 5 Wentworth's Pleading, 53, 55, is for a case where
the disturbance was committed by one claiming under the cove-
nantor. These authorities, and also a case in 7 Johns 376
confirm the rule, that when the covenantor himself does an act
asserting title, it will constitute a breach of the covenant for
quiet enjoyment, but go no farther, (a) And even this doc-
trine is rather an exception to the general rule, and was not
formerly recognized. 1 Roll. Abr. 428, pi. 7. The cove-
(<z) Hamilton vs. Doolittle, 37 HI. R. 473.
DECEMBER TERM, 1846. 181
Beebe v. Swartwout.
nant for quiet enjoyment extends to lawful disturbances only,
and not to tortious acts. Sugden on Vendors, 85, bottom page.
And in case of the covenantor disturbing the possession, he
must do so asserting title, or else there is no breach. Ibid. 84,
bottom page. It is manifest that this doctrine does not apply
to the case now under consideration as there is no pretence that
either the covenantor, or any one claiming under him, is alleged
to have disturbed the possession of Beebe. The disturbers here
hold, not only independent of the covenantor, but, as it is said,
adversely to him. This disposes of one class of cases cited by
appellant. There is, however, another which seems to be more
favorable to his position. Under the latter class falls, in my
opinion, the case of Duval v. Craig, 4 Peters' Cond. R. 32, where
it is said, that if the grantee be unable to obtain possession in
consequence of an existing possession, by a person claiming and
holding under an elder title, this would certainly be equivalent
to an eviction and breach of the covenant. So the case in 4
Mass. 490, where it is decided that lawful disturbance, by a
stranger having a paramount title, and where some particular
act is shown, by which the plaintiff is disturbed, amounts to a
breach of covenant for quiet enjoyment. To this effect is, also,
the case in 17 Mass. 589 ; see, also, 3 Fairfield, 499 ; 1 U. S.
Dig. 687, and 293, where it is laid down, that although the
mere existence of a better title is not a breach of this covenant,
sufficient to give an action thereon, yet if it be accompanied
with possession under it, commenced before the deed containing
such covenant was executed, it will amount to a breach of cove-
nant. 3 Dev. 200. In Foster v. Pierson, 4 Term R. 117, the
court in their decision, speak of a disturber having lawful
title, the word lawful being italicised in the report. The
case in 15 Pickering, 149, was a case where the lessee of
the covenantor was disturbed by the mortgagee, after the
mortgagor, who was the covenantor, had failed to pay the
mortgage, and this was held equivalent to an actual ouster
and eviction. I find no difficulty in arranging under this
head also two other cases, cited by the appellant, and on
182 SUPREME COURT.
Beebe v. Swartwout.
which he seems to have placed a great deal of reliance. I mean
the cases in 8 Cowen, 36, and 12 Vermont, 85. In the first
case, the declaration of the covenantee alleged that his cove-
nantor, neither at the date of the lease or since, was seized of
the premises and had no interest therein, which would authorize
him to demise ; and that the plaintiff could not enter, but was
by the rightful owner of the premises hindered and could not
quietly hold and possess the same. Here no eviction was al-
leged, and the court say: "this was not necessary; nor in-
deed could there be any eviction where the lessee never had
possession." The complaint is, that from want of title in the
lessor, the lessee could not get possession, but was kept out by
the true owner. The substance of the decision in the 12th Ver-
mont, is contained in the following passage in the Opinion of
the court, delivered by Williams, Ch. J. "I apprehend that on
the covenant for quiet enjoyment, and a fortiori on this covenant
of warranty, it is not necessary to state and prove a technical
eviction, but the action may be maintained, if the plaintiff is
hindered or prevented by any one having a better right, from
entering and enjoying the premises granted." Now what is
the rule which may be extracted from all these cases ? Is it,
that the mere possession or intrusion of a stranger claiming title,
or right of possession, amounts to a breach of covenant for quiet
enjoyment ? I think not. None of the cases just considered
go that far. It will be perceived that in every one of them, the
disturber of the possession, enters, or holds possession, having
or claiming an " elder, "a " better " a " lawful " or a " para-
mount title." They clearly establish the principle, that to con-
stitute tbe breach, there must be a union of acts of disturbance
and lawful title, (a) It is not denied by appellant's counsel,
that the decisons found in the New York Reports all go to affirm
the doctrine just stated, and that they go even much farther, and
require, in many cases, strict technical eviction, where other courts
have been much more indulgent. In 7th Wendell, 281, it
was held, that it is not sufficient evidence of a breach of this
covenant (quiet enjoyment) that the covenantee has been
(a) Moore vs. Vail, 17 111. R. 190 ; Harding vs. Larkin, 41 HI. R. 414.
DECEMBER TERM, 1846. 183
Beebe v. Swartwout.
sued and recovery had against him in trespass by*'a third
person claiming title to the land, unless the plaintiff avers
and proves that such person, before or at the date of the
covenant, had lawful title, and by virtue thereof, entered
and arrested the plaintiff. See also as to this point, 4 Hill's
(N. Y.) R. 643, 645 ; 2 do. 112, 113. This rule that it re-
quires disturbance and lawful title to constitute a breach of
this covenant, is well supported by decisions in other States
besides New York. See 4 Mass. 352 ; 17 do. 589, 590, and
8 Pickering, 350, which last case I consider a case pecu-
liarly apposite, and where the court say, "that it is not suffi-
cient in order to constitute a breach of the covenant of
warranty, (or of quiet enjoyment), to show that there is
an outstanding title, and that in consequence thereof the
covenantee could not get possession." "The depositions,"
the court goes on to say, "show an actual possession and
occupancy, and payment of taxes by several persons ; but
there is no legal evidence of their title. The fact of pos-
session as proved by the witnesses stands disconnected from
any title, and therefore we cannot know, that it was not
unlawful, and if it was so, it is no breach of the covenant of
warranty." The case in 1 Speers, 120, I also hold to be
affirmatory of our views. Let us now apply this rule to the
case at bar. There is no averment in Beebe's bill, that
the persons in possession at the time of his purchase had
any lawful title, or any present right of possession ; there is
no proof indeed that they had any title whatever. The
complainant has t undoubtedly made the strongest case here,
which he could have possibly made in a court of Law from
the facta as they were. But had he failed to aver in his
declaration, or to prove upon the trial that the persons in
possession had a good or better title, he could not have re-
covered. For aught we know, the persons in possession
claim under Beebe, the appellant himself, while he himself
has taken a title from the convenantor. The appellant has
made no effort whatever, as I think, to assert his own rights,
or at least, to ascertain the real rights of the disturber, for
the action of ejectment, dismissed by him, before his title
184 SUPREME COURT.
Beebe v. Swartwout.
was ever passed upon, cannot be considered in such a light.
These disturbers may yield to his title such as it is, (and it
is very likely that it may be capable of being perfected,
though we are not called upon to express an opinion on this
point ), upon a demand of possession made by him. It ap-
pears to me, that he must exert himself in some way to enjoy
his possession, or must affirmatively prove that his adversa-
ries have paramount and superior title to his, so that his
struggle would be unavailing, before he can sue on the cove-
nant, or obtain redress in a court of chancery. He must
not only show that he is weak, for weak as he may be, he
may yet be strong enough for his adversaries, but he must
show that his adversaries are stronger than he is. To para-
mount title, provided he can establish it, he may peaceably
and voluntarily yield ; but he cannot be permitted to aban-
don the premises or buy in an outstanding claim, where a
mere claim is set up by another, which may be destitute of
all foundation, or may rest on a fabric of his own construc-
tion. 2 Saund. 181 a, note 10 ; 4 Mass. 352 ; 17 do. 590 ;
Francis' case, 8 Coke, 89.
In conclusion, I will advert to another question, which, as
it had been made, I deem it best to consider, and that is
the kind of relief which would have to be granted in case
that the court should have been satisfied that the covenant
had been broken. It will be recollected that Beebe prays
that Swartwout be enjoined from the collection of any of
the purchase money, be compelled to produce his title, and
to put Beebe in possession ; or, that on failure to put him so
in possession, the contract be rescinded, and the money
already paid on the land be repaid to Beebe. This court
is of opinion, that under the circumstances of this case the
relief specially asked for by Beebe, that is, a rescission of the
contract, could not be granted to the appellant, Beebe.
There is a distinction between contracts of an executory
character and those which are fully executed by deeds or
conveyance. In the latter case there can be no rescission
of the contract, unless it has been tainted by actual fraud.
In a case like the present, unaffected by fraud, and where it
DECEMBER TERM 1846. 185
Beebe v. Swartwout.
moreover appears that the contract, if broken at all, is only
broken as to part of the premises conveyed, — for the land
not actually occupied by others, or occupied by Beebe him-
self, cannot be embraced in the breach, — all that the appel-
lant would be entitled to, under the prayer for general relief
would be to obtain an injunction to restrain the collection of
the purchase money, and to have it finally set off against the
damages sustained. 1 Dana, 305.
To recapitulate, then, we are of opinion, 1st. That, under
the circumstance of this case, Chancery could only afford re-
lief, if the appellant could have successfully maintained an ac-
tion on the convenant for quiet enjoyment, at law. 2d. That at
law he would have failed to do so, as he does not insist that the
persons who are in possession, and prevent him from taking
possession, have a valid and paramount title ; it being neces-
sary, before a recovery can be had on this convenant, to show
both acts of disturbance and paramount title, or at least a
right of possession. 3d. That the facts presented in the case,
if sufficient to entitle him to some relief, would yet not have
warranted a recission of the contract, but would have given
him a right to set off his damages against the purchase
money.
The decree below dismissing the cross-bill and render-
ing a decree of foreclosure in favor of the original complain-
ant, is affirmed, at the costs of the appellant, Beebe.
Decree affirmed.
186 SUPREME COURT.
Fell et al. v. Price et al.
Jesse Eell et al., appellants, v. Robert Price et al.,
appellees.
Appeal from McLean.
A. since dead, obtained a judgment and execution against B. and others, which
was levied upon certain parcels of land. The land was sold, and the son of
A., acting as his agent, purchased the premises, took a certificate of purchase
in his own name, and paid no money for the land, but acknowledged satisfac"
tion of the judgment upon the record, and paid the costs with money given
him by his father for that purpose. C. one of the judgment debtors, the
time of redemption having nearly expired, made an agreement with A. by
which he conveyed to him by a deed absolute on its face, said lands, and also,
for further security, another tract of land. A. with a view of giving C. fur-
ther time to redeem said land, executed a bond for a deed, conditioned for the
payment of the money by a specified time. The only object in view was an
extension of the time of redemption by the arrangement aforesaid. The
money was not paid as stipulated in the bond, and A. by the consent of C.
sold to D. two of the said tracts of land, and D. sold to E. giving the latter a
bond for a title. E. made improvements to the amount of $1,000. The land
was valued at $100. About eighteen months after the recovery of A. 's judg-
ment, another creditor of C. obtained a judgment and execution against him,
which was levied on the last mentioned lands, already sold on A. '■ execution,
and were about to be sold, when E. filed a bill for an injunction against the
judgment creditor and the sheriff. Subsequently D. was made a complainant
with E. and a decree was rendered against the said complainants, requiring
them to pay to the said judgment creditor the sum of $100, to be credited on
the judgment, from which decree the complainants appealed : Held, that the
decree was erroneous; that the injunction should have been made perpetual;
and that A. or his heirs might, at any time, obtain a sheriff's deed upon the
certificate, which deed would relate back to the sale and judgment as to the
time of acquiring title againstjsubsequent purchasers or incumbrancers.
Bill in Chancery for an injunction, filed in the McLean
Circuit Court by the appellants against the appellees, and
heard at the April term 1845, before the Hon. Samuel H.
Treat. It was then decreed tbat the complainants pay the
defendant, Price, the sum of $100 by the first day of the next
term, &c, and if payment was made, the injunction should
be made perpetual. The complainants appealed from this
decree.
The material facts are stated by the court.
A. Lincoln, for the appellants.
U. F. Linder, for the appellees.
DECEMBER TERM, 1845. 187
Fell et al. v. Price et al.
The opinion of the court was delivered by
Koerner, J.* On the sixteenth day of 'September, 1844,
Jesse Fell, one of the appellants, filed a bill for an injunction
and relief in the Circuit Court of McLean county, against
Robert Price and Richard Edwards, the latter being sheriff
of said county, and a mere nominal party. Robert Price
alone; answered, and upon his answer coming in, leave was
given to complainant to amend his bill. At the April term
1845 of said Circuit Court, an amended bill was filed, which
made Carlton H. Perry a complainant with the original com-
plainant, and John N. Low a co-defendant. By agreement
of parties the former answer of Price was considered as an
answer to the amended bill, and whatever new matter was
set forth in the same was to be considered as denied. John
N. Low filed his separate answer to the amended bill. It
appears that by consent parol testimony was heard by the
Court, and all the evidence and admission of parties pre-
served in a bill of exceptions.
Upon a final hearing of the cause, it was decreed by the
Court that the complainants pay the defendant, Price, the sum
of one hundred dollars by the first day of the next term of
the said Court, to be credited on the judgment mentioned in
the pleadings, and that in case of such payment being made,
the injunction should be made perpetual. From this decree
Fell and Perry, the complainants below, have appealed to
this Court.
The pleadings of the parties, and the evidence in the
cause, which is preserved in a bill of exceptions, the parties
having admitted parol evidence, present the following case :
At the May term of the McLean Circuit Court, A. D.
1838, one Nathan Low, since dead, obtained a judgment
against one Jesse W. Fell and others, for the sum of $220.81
and costs, upun which an execution was issued on the 10th
March, 1839, which was levied upon two tracts of land, one
being described as lot number two, of the north east quarter
of section sixteen, township twenty three north, two east of
* DennLng, J. did not sit in this case.
188 SUPREME COURT.
Fell et al. v. Price et al .
third principal meridian, and the other being described by
metes and bounds as a five acre tract of land near the town
of Bloomington in said county, as also, on a town lot in said
town, being number twenty seven, block five. Said real
estate was owned at the time of said levy by said Jesse W.
Fell, and was sold under said execution on the 16th June,
1839. John N. Low, son of said Nathan Low, acting as
agent for his father, purchased said premises for the sum of
$285.16, in full for said judgment, taking from the sheriff the
certificate of purchase in his own name, douting his au-
thority to have it made to his father, as the latter had not
been present at the sale. John N. Low paid no money for
the land, but acknowledged satisfaction of the judgement on
"he record, and paid the costs with money given him by his
father for that purpose. By the certificate he was entitled
to receive a deed for said land , after the expiration of fifteen
months from the day of sale, if the land was not redeemed.
Jesse W. Fell, on the 11th of May, 1840, the time of re-
deeming by him ( twelve months ) having nearly expired >
but being still anxious to have an opportunity of acquiring
the ownersnip in the lard back again, made an arrange-
ment with Nathan Low, his judgment creditor, by which he
conveyed him by a deed, absolute on its face, the land
purchased under the execution, and also for further security,
an additional tract of land described as lot number six-
teen, in said section sixteen, being a piece of timber land.
Nathan Low on his part, with a view to give Jesse W.
Fell futher time to redeem said land, executed a bond
for a deed of said land to said Fell, conditioned to be
void, if, at a certain subsequent time, the payment of the
amount of said judgment, interest and costs was not made.
It appears from the statements in the bill and the evidence,
that it was no part of said agreement that the purchase
under the execution should be set aside by the new contract,
and that the parties only intended to extend the time of re-
demption by the arrangement, the additional lot sixteen
being included in the conveyance for the sole purpose of
giving the said Nathan Low additional security while he gave
DECEMBER TERM, 1846. 189
Fell et al. v. Price et al.
further time to the judgment debtor. Jesse W. Fell, how-
ever, was not able to pay the money mentioned in the con-
dition of said title bond, and with his assent Nathan Low
sold two of the tracts of the land, to wit ; lot two, in said
section sixteen, and the 'afive acre tract near Bloomington, to
C. H. Perry, one of the complainants, by a warranty deed,
dated November 20th, 1840, Perry paying down the pur-
chase money, which was the full value of said premises at
the time of the sale. Subsequently Perry sold this land, the
same originally sold under the executions, to Jesse Fell, Sr.,
the other complainant, giving him a bond for a title dated
November 20th, 1842. Jesse Fell, Sr., since the purchase
has made valuable improvements on the land, worth about
one thousand dollars, while the land itself, at the time it was
first purchased of Low, was worth but one hundred dollars.
At the October term 1839, some eighteen months after
Nathan Low ^had obtained his judgment, the defendant Price
recovered also a judgment against the said Jesse W. Fell for
$513.97, which was levied by the co-defendant Edwards,
sheriff of McLean county, upon the said two tracts of land,
which had been once before sold under Low's execution.
"When the complainant's bill was filed, said premises were
about being sold by the said sheriff.
The decree of the court below, making the injunction
perpetual, upon payment of one hundred dollars by the com-
plainants, Jesse Fell, Sr. , and Carleton H. Perry, manifestly
proceeded upon the ground that the lands, first sold to Low
under his judgment, were liable to be sold again to satisfy
the subsequent judgment of Price, exclusive, however, of
the improvements made thereon by the elder Fell. The
value of the land without the improvements was one hundred
dollars, the precise amount which complainants were decreed
to pay before the injunction should be made perpetual. The
court must have been of opinion that by the subsequent ar-
rangement between Nathan Low and the younger Fell, the
latter conveying to the former the same land by deed, all the
former proceedings under the judgment and execution had
been waived, and that Low derived his title solely by said
190 SUPREME COURT.
Fell et al. v. Trice et al.
conveyance, which was made after Price had acquired a
lien on the land. The same view has been urged here by the
appellees' counsel.
We cannot look upon this transaction between Nathan
Low and Jesse W. Fell in this light, even if it were unex-
plained by the parties and the evidence. Nathan Low might
at any time before his death, or his heirs may yet obtain the
sheriff's deed for said land on the certificate of purchase, and
the deed will necessarily relate as to the time of acquiring
title against subsequent purchasers or incumbrancers back to
the sale, and even back to the judgment. Low's title
then can be made perfect in law, and it cannot certainly
be affected by his having taken in addition a deed from the
judgment debtor, although such deed was made after a sub-
sequent judgment. But the matter is perfectly explained by
the complainants' bill, which states what the intentions of the
parties were ; and the defendants' answer does not deny the
truth of this explanation, but merely states his belief that
Nathan Low renounced his rights under the former sale, and
argues from the facts, but does not set up as a fact, the
waiver of said sale. The testimony of witnesses is, however,
conclusive upon this point, and sustains the allegations in the
bill throughout.
We are satisfied that Price acquired no rights on the land
in question by his subsequent judgment, and that, conse-
quently, the decree of the circuit court was erroneous.
The injunction ought to have been made perpetual without
a condition, and at the costs of the defendant. As it is in
the power of the court here to render such decree as ought
to have been rendered below when sufficient appears on the
record to enable the court to do so, the proper decree will
be given here.
The decree of the court below is reversed at the cost3 of
the appellees, and the injunction granted by the court below
is made perpetual ; the defendants below to pay the costs in
the court below.
Decree reversed.
DECEMBER TERM, 1846. 191
Brown v. Pease et al.
Nathaniel J. Brown, plaintiff in error, v. William T.
Pease et al., defendants in error.
Error to Cook.
Three promissory notes were executed to B. payable on the first days of Septem-
ber, October and November, which notes, before maturity, were assigned to
' C. who brought suit on them on the fifth day of the ensuing January, return-
able on the first Monday of March, that being the commencement of the first
term of the Circuit Court after their maturity. The Municipal Court was
by law required to be held on the first Mondays of November, January and
March. At the November term, the Judge gave notice that he should not
hold the January term, and acted accordingly. Judgment was obtained on
the notes at the November term, the cause haA'ing been contested and con-
tinued from the March term, when an execution was duly issued, and returned
nulla bona. C. then sued B. as assignor of the three notes, and the jury re-
turned a verdict in his favor for the note and interest last due only: Held, that
due diligence was not used to collect two of the three notes, as a suit might
have been brought to the November term of the Municipal Court, but as to
the third, the suit was duly brought, (a)
Assumpsit in the Cook Circuit Court, brought by the de-
fendants in error against the plaintiff in error, as assignor of
three several promissory notes. The cause was heard at
the October term 1843, before the Hon. Richard M. Younsr
and a jury, when a verdict was rendered in favor of the
plaintiffs below for $195, the amount of the note last due.
The material facts will appear in the opinion of the court.
J. Butterfield, for the plaintiff in error.
J. Y. Scammon & N. B. Judd, for the defendants in error.
The opinion of the court was delivered by
Treat J.* On the 22d of July, 1837, Taylor, Hunt & Co.
executed to N. J. Brown, the plaintiff in error, three prom-
issory notes for $133.33 each, and payable respectively on the
first days of September, October and November thereafter.
Before maturity, these notes were assigned by Brown to the
(a) Chalmers vs. Moore, 22 IU. R. 361.
*Dexni>tg, J. did not sit in this case.
192 SUPBEME COURT.
Brown v. Pease et al.
defendants in error. On the 5th of January, 1838, the
defendants in error brought an action on the notes in the
Cook circuit court. The process was returnable on the
first Monday of March, that being the commencement of
the first term of the circuit court after the maturity of the
notes. The action was contested, and was continued until
the November term 1839, when a judgment was rendered
against the makers for the amount of the notes and interest.
An execution issued thereon on the 20th of November, 1839,
on which the sheriff made the return of nulla bona. The
Municipal Court of the city of Chicago was by law required
to be held on the first Mondays of November, January and
March. During the November term 1837, the Judge of that
court informed the Bar that he should not hold the coming
January term, and the result was that he did not hold it.
In October, 1843, the defendants in error brought this suit
against Brown to recover the amount of the notes. On the
foregoing state of facts, the jury returned a verdict in favor
of the defendants in error for $193, the amount of the note
which last fell due, and the interest thereon. The court
refused to grant a new trial, and rendered a judgment on the
verdict. That decision is assigned for error.
It is insisted that the defendants in error did not use due
diligence to collect the notes of the makers. This may be
true of the two notes first becoming due. An action might
have been brought on those notes to the November term of
the Municipal Court. The jury so decided, and the pro-
priety of their finding in that respect is not now questioned.
The position is not tenable as to the third note, which fell
due within ten days of the commencement of the term. The
action was brought to the first term of the circuit court,
the process was sued out in reasonable time to be served,
the suit was prosecuted diligently to final judgment, and an
execution was issued in due season, on which the sheriff
made the return of nulla bona. These acts of diligence made
out a clear prima facie cause of action as to the third note,
and there was nothing in the evidence to contradict or de-
feat it. The defendants in error were under no obligation to
DECEMBER TERM, 1846. 193
Wright v. Taylor.
sue is the Municipal court. There was no terra of that
court held sooner than the circuit court. The Judge had
given public notice that the January term would not be held,
and suitors had the right to rely on the declaration. The
bringing of a suit to that term would have been a useless
act, which the defendants in error were not bound to do.
The judgment of the circuit court is affirmed, with costs.
Judgment affirmed.
John Wright, plaintiff in error, v. John Taylor, defendant
in error.
Error to Menard.
A. gave to B. his promissory note for $672.08, payable in two years, and nego-
tiable in the State Bank of Illinois, and secured the same by a mortgage of
real estate. The note was assigned to said Bank by the payee, and its paper
having depreciated, B. without the assent or concurrence of A. when said
note became due, paid the said note in such depreciated paper. B. then
brought his bill in Chancery to foreclose the mortgage, and the Circuit
Court rendered a decree in his favor for the amount of the note and inter-
est, and that the mortgaged premises be sold, &c : Held, that B. only
succeeded to the rights of the Bank, and could not, by his voluntary act,
have any belter right or superior equity ; that A. was entitled to discharge his
. indebtedness in the paper of the Bank, and that B. could only recover the
value of the funds at the time he paid the note, (a)
Bill in Chancery to foreclose a mortgage, &c, brought
by the defendant in error against the plaintiff in error in the
Menard circuit court, and heard before the Hon. Samuel
H. Treat, when a decree of foreclosure, &c, was rendered.
The facts appear in the opinion of the court.
A. T. Bledsoe, for the plaintiff in error.
A. Lincoln, for the defendant in error.
The opinion of the court was delivered by
Purple, J.* On the 18th day of October, 1843, Taylor,
the defendant in error, filed his bill ^in chancery in the court
(a) Scofiekl vs. Bessenden, 15 111. R. 78.
* Denning, J. did not sit in this case.
GIL. in — 13.
194 SUPREME COURT.
Wright v. Tavlor.
below, to foreclose a mortgage executed by Wright, the
plaintiff in error.
The bill describes the mortgage as having been executed
on the sixth of March, A. D. 1841, and alleges that it was
given to secure the payment of three notes, each for the sum
of $672.08, due severally at one. two and three years ; that
the first note had been paid, and the second is due and un-
paid, and concludes with a prayer for a decree, that the de-
fendant below pay said note and interest, and in default
thereof, that the mortgaged premises be sold, &c.
The following is a copy of said note: "Two years after
date, I promise to pay John Taylor or order, six hundred and
seventy two dollars and eight cents, value received, payable
and negotiable in the State Bank of Illinois.
March 6th, 1841.
(Signed) John Wright."
Wright filed his answer, admitting the execution of the
note and mortgage, and that he had not paid the note. But
he charges that Taylor assigned the note to the State Bank
of Illinois, in payment of a debt due by him to the Bank ;
and that being so assigned, and the property of the bank,
he ( Wright ) had by law, and the charter of the bank, the
right and privilege of paying the same in the paper of the
bank. He further charges, that after the assignment, the
paper of the bank depreciated, so that it wa3 worth only
about twenty six cents to the dollar, and that upon such de-
preciation, the note having became due and unpaid, Taylor,
without any authority from him, paid the note to the bank in
such depreciated paper, and that the bank delivered the note
back to Taylor, who seeks to collect the same in money.
The cause was heard upon the bill, answer and exhibits,
and a decree rendered in favor of the complainant in the
circuit court for the amount of the note and interest, and
that the mortgaged premises be sold, &c. The plaintiff here
seeks to reverse this decree, and contends that in equity he
is only bound to pay the specie value of the bank paper at
the time it was advanced by Taylor, and interest thereon
from the date of the advancement.
DECEMBER TERM, 1846. 195
Wright v. Taylor.
The case, I think, is plain and easy of solution. The
general doctrine of the law relative to the transfer, and in-
dorsement of promissory notes, has necessarily but little
application to the question, and the controversy may be set-
tled equitably and legally without the slightest interference
with any known or established principle.
What are the facts ?. The Bank was the holder and legal
owner of this note. It was over due. The maker had an
unquestionable right in law to pay it in the paper of the
Bank. If the Bank had assigned it to a stranger, its assignee
could only have succeeded to its rights, subject to every
equity existing between it and the maker. The payee and
assignor can have no better rights nor superior equity by
voluntarily taking up the note. His liability depended upon
the failure of the bank to collect the amount due upon the
note, by due course of law against the maker. In no event
could he be compelled to pay in any funds except the paper
of the bank. This had depreciated, and as the answer states
which, for the purposes of this decision must be taken to be
true, was worth but twenty six cents to the dollar. I cannot
understand how Taylor, under the circumstances, could have
any legal or equitable right, especially before he was liable
to a suit as indorser of the note, to purchase it of the bank
and charge Wright more than he had paid for it himself. It
is clear that no other person could have done so. Having
been once the absolute property of the bank, and over due
the maker's right to discharge it in bank indebtedness ac-
companied it into whose hands soever it might afterwards
fall, as fully and to all intents and purposes, as it would have
done if it had been so stipulated upon the note itself. If
any doubt had previously existed upon this question, it was
put at rest by the act of the general assembly of this state,
approved December 22, 1842, (Laws 1842-3, page 21) by
•which it is provided : "That all debts and demands due by
note or otherwise, unto the President, Directors and Com-
pany of the bank of Illinois, or to the State bank of Illinois,
or that may hereafter become due unto either of said
banks, may, after or before suit brought thereon, be dis-
196 SUPREME COURT.
Wright v. Taylor.
charged and paid in notes and bills of said banks respectively
to which said debt Or demand may be due, whether the same
be in possession of said bank or banks, or assigned or trans-
ferred to any corporation, person or persons."
The precise time when the note was paid by Taylor to the
bank does not appear. It is shown in the answer, that it
was not done until after the same fell due, which was on the
sixth of March, A. D. 1813. This was subsequent to the
passage if the law before referred to, and also to the act
of the 24th January, 1843, (Laws of 1842-3 page 21,) put-
ting the bank in liquidation. In order to do ample justice
to the complainant in the court below, I shall assume that
he paid the note on the seventh of March, 1843, the day after
its maturity.
According to the answer, the value of the funds in
which the same was paid or purchased would be $174.74 •
which sum, with interest thereon at the rate of six per cent,
per annum from the date last aforesaid until the money shall
be paid, Taylor is entitled to recover.
The decree of the circuit court is, therefore, in part
reversed ; but inasmuch as it is competent for this court to
render the proper decree in the premises, it is ordered, ad.
ud°"ed and decreed, that the defendant in the court below
pay to the complainant in said court, the sum of one hun-
dred and seventy four dollars and seventy four cents, with
interest thereon at the rate of six per cent, per annum from
the seventh day of March, A. D. 1843, to the time such pay-
ment shall be made, within twenty days from the date of this
decree ; and that the same shall be in full satisfaction and
discharge of the note referred to in and exhibited with said
complainant's bill ; and that in default of such payment, that
the mortgaged premises described in said bill be sold, and
said mortgage be foreclosed in the manner directed and
required by the decree of the circuit court herein, and that
the commissioner appointed by said decree to make said
sale and execute to the purchaser or purchasers of said
mortgaged premises a certificate, or certificates of purchase
pursuant to the directions of said decree ; and that, for the
DECEMBER TERM, 1846. 197
Welsh et al. v. Sykes.
purposes aforesaid, so much of the said decree shall stand
affirmed and be in force. And it is further decreed, that the
defendant in error recover his costs in the Court below, and
the plaintiff in error his costs in this Court, and that execu-
tions from said Courts issue respectively therefor ; and that
this cause be remanded for further proceedings not incon-
sistent with this decree.*
Decree reversed.
Upton D. Welch et al., plaintiffs in error,, v. James Sykes
defendant in error.
Eiror to Clark.
Under the Constitution of the United States, and the laws of Congress made in
pursuanee thereof, judgments in-personam of the various States are placed
on the same footing as domestic judgments, and are to receive the same
credit and effect when sought to be enforced in different States, as they by
law and usage have in the particular States where rendered.
A judgment fairly and duly obtained in one State is conclusive between the
parties when sued on in another State. But the defendant may show, in bar
of an action on such judgment, that the judgment was fraudulently obtained,
or that the Court pronouncing it had neither jurisdiction of his person, nor
of the subject matter of the action. If he succeed in establishing any one
of these defences, the judgment is entitled to no credit, and the plaintiffmust
rely on his original cause of action. The defendant may admit the existence
of the record, and set up by special plea any of these matters of defence in
avoidance of the judgment; and the plaintiff may traverse the allegations o f
the plea, or reply new matter in avoidance.
The record of a judgment, in an action on the judgment, may be used in evi-
dence on the trial, and, when introduced, affords conclusive evidence of the
facts stated in it. If, however, a record states that the defendant appeared
by attorney, it is conclusive proof that the attorney appeared for him, but
only prima facie evidence of his authority to appear.
Where a judgment has been obtained, there is a strong legal presumption that
the Court had jurisdiction, and that in proceeded conformably to the laws
of the State in which it was rendered. The rule, therefore, is that a plea
*Wilson, C- J. and Lockwood, J. dissented.
198 SUPREME COURT.
Welch et al. v. Sykes.
denying the jurisdiction of the Court must, by certain and positive aver-
ments, negate every lact from which the jurisdiction may arise.
If a record of a judgment shows that the defendant appeared bv attorney, the
plaintiff must reply this fact to the plea, and the defendant may rejoin that
the attorney had no authority to enter his appearance. The record affords
prima facie evidence of his right to appear.
Each State of the Union may prescribe the mode of bringing parties before its
Courts, and although its regulation, in thisjrespeet, can have no extra-
territorial operation, they are, nevertheless, binding on its own citizens.
Debt on a judgment of a court in Maryland, brought by
the defendant in error against the plaintiffs in error, in the
Clark Circuit Court, and heard before the Hon. William
Wilson, on a demurrer to pleas, which was sustained. The
substance of those pleas will appear in the opinion of the
court.
A. Lincoln, for the plaintiffs in error.
C. H. Constable, for the defendant in error.
The opinion of the court was delivered by
Treat, J.* This action was commenced in the Clark
Circuit Court by Sykes against Welch and others. Watson,
one of the defendants, only was served with process. The
declaration was in debt on a judgment recovered by Sykes
against the defendants, in the Ann Arundel County Court,
in the State of Maryland, on the 26th of October, 1835, for
$340.00 debt, and $10.84 damages. Watson appeared and
pleaded seven pleas. The court sustained a demurrer to
the third, fourth, fifth and sixth pleas ; and the defendant
thereupon withdrew the other pleas, and the plaintiff had
judgment for his debt and damages. The decision of the
circuit court sustaining the demurrer to the pleas is as-
signed for error.
The third plea alleges, that from the commencement of
the suit in Maryland until the rendition of the judgment
therein, the defendant resided in the State of Ohio, and
^Justices Koerner, Thomas and Denning did not sit in this case.
DECEMBER TERM, 1846. 199
Welch et al. v. Sykes.
during all of that time "was not within the limits of the State
of Maryland, and that he never appeared in person, nor au-
thorized any one to appear for him.
The fourth plea alleges in substance, that from the com-
mencement of the suit until the rendition of the judgment,
the defendant resided in Ohio and was not in Maryland, and
that he did not appear in the suit in person or by attorney.
The fifth and sixth pleas aver generally, that the defend-
ant was never served with process, and that he had no notice
of the pendency of the suit.
Under the Constitution of the United States and the laws
of Congress made in pursuance thereof, the judgments in
personam of the various States are placed on the footing of
domestic judgments ; and they are to receive the same credit
and effect when sought to be enforced in different States, as
they by law or usage have in the. particular States where
rendered. A judgment fairly and duly obtained in one State
is conclusive between the parties when sued on in another
State. The defendant may show, in bar of an action on the
record of a judgment of another State, that the judgment
was fraudulently obtained, [a] or that the court pronouncing it
had neither jurisdiction of his person, nor of the subject mat-
ter of the action. If he succeed in establishing any one of
these defences, the judgment is entitled to no credit, and
the plaintiff is driven to his suit on the original cause of
action. Bimeler v. Dawson, 4 Scam. 536, and the cases
there cited. The defendant may admit the existence of the
record, and set up by special plea any of these matters of
defence in avoidance of the judgment. Harrod v. Barretto,
2 Hall, 302 ; Shumway v. Stillman, 6 Wend, 447 ; Starbuck
v. Murray, 5 do. 148. The plaintiff may traverse the alle-
gations of the plea, or reply new matter in avoidance. The
record of the judgment is to be used as evidence in the trial
of the issue ; and when introduced, affords conclusive evi-
dence of the facts stated in it. Thus if the record shows
affirmatively that the defendant was personally served with
process, or personally appeared to the action, it furnishes
conclusive evidence of the fact stated, and the defendant
(a) Lawrence vs. Jarvis, 32 IU. R. 310 : Carr vs. Miner, 42 HI. K. 180, Christmas
vs. Russell, 5 Wal. U. S. R. 303.
«y-?fA/~-r
200 SUPREME COURT.
Welch, etalv. Sykes.
cannot controvert it. Hall v. Williams, 6 Pick. 232 ; Shuni-
way v. Stillman, 6 Wend. 447 ; Rust v. Frothingham, Bre.
258. If either of these facts clearly and distinctly appear on
the face of the record, the plaintiff may reply that the
defendant is estopped by the record from denying that the
Court had jurisdiction over his person. Hall v. Williams,
6 Pick. 232. If the record states that the defendant ap-
peared by attorney, it is conclusive proof that the attorney ap-
peared for him, but only prima facie evidence of the au-
thority of the attorney to appear, and which latter fact the
defendant is at full liberty to disprove, (a) Hall v. Williams,
6 Pick. 232 ; Shumway v. Stillman, 6 Wend. 447. The
pleas in question seek to invalidate the judgment declared
on, by showing that the court in which it was recovered
had no jurisdiction over the person of the defendant, and
consequently no authority to render the judgment. Where
a judgment has been obtained, there is a strong legal pre-
sumption that the court had jurisdiction, and that it pro-
ceeded conformably to the laws of the State in which it was
rendered. The rule therefore is, that a plea denying the
jurisdiction of the court must, by certain and positive aver-
ments, negate every fact from which the jurisdiction may
arise. Harrod v. Barretto, 1 Hall, 155 ; Shumway v. Still-
man, 4 Cowen. 292. The third and fourth pleas clearly
come within the rule. If the averments contained in them
are true, the court in Maryland could not have acquired
jurisdiction over the persons of the defendant, either by the
service of process, or by any notice which he was bound to
attend to. If he was a citizen of Ohio during the pendency
of the suit in Maryland, the only modes by which the court
could have acquired the authority to render a ^personal
judgment against him, were either by the service of process
on him while he was temporarily within the limits of the
latter State, or by voluntary submission of his person to
the jurisdiction of the court. That the court obtained juris-
diction in either of these ways, is explicitely and positively de-
nied by the pleas.
Although no part of the record of this case, a copy of the
(a) ltust vs. Frothingham. Beech. Breese R. 331 ; Lyon vs. Baldwin, 2 Gil. E. 635 ;
Lake vs. Cook, 15 111 R. 35(5 ; Whittaker vs. Murray, 15 111. li. 294, and notes.
DECEMBER TERM, 1846. 201
Welch etal. v. Sykes.
record of: proceedings'in the suit in Maryland, has been sub -
mitted to the inspection of the Court. It appears therefrom
that an attorney appeared for the defendant. The proper
course will be for the plaintiff to reply this fact to the pleas,
and the defendant may rejoin that the attorney had no au-
thority to enter his appearance. On the trial of such issue,
the record will afford prima facie evidence of the right of
the attorney to appear, and the defendant will be allowed to
overthrow the presumption, by proving that he never au-
thorized the attorney to appear for him. And this question
of the authority of the attorney will probably be the only one
arising on the future trial of the case, [a]
The fifth and sixth pleas are manifestly bad. These pleas
may be true in point of fact, and still the Court may have
had jurisdiction of the person of the defendant. It is com-
petent for each State to prescribe the mode of bringing par-
ties before its Courts. Although its regulations in this
respect can have no extra-territorial operation, they are,
nevertheless, binding on its own citizens. For aught ap-
pearing on the face of these pleas; the defendant may have
been a resident of the State of Maryland, and received such
notice of the pendency of the suit, as conferred authority on
the Court to hear the case and pronounce the judgment. If
he was a resident of another State, it may be that prior to
the commencement of the suit and in anticipation of its being
brought, he retained an attorney to enter his appearance and
defend it. He may have done this, and afterwards have had
no personal knowledge of the pendency of the suit. These
pleas, like the others, should have contained the addi-
tional averments that he was beyond the jurisdiction of the
Court, and that he had never authorized his appearance, or
such other allegations as would have negatived every pre-
sumption of jurisdiction (6)
The Circuit Court decided correctly in sustaining the de-
murrer to the fifth and sixth pleas, but erred in sustaining it
to the third and fourth pleas. For this error the judgment
will be reversed with costs, and the cause will be remanded
for further proceedings.
Judgment reversed.
(a) Rae vs. Hulbert, 17 m. R. 478 ; Warren vs. McCartney, 25 111. R. 95.
(b) Sim vs. Frank, 25 111. R. 125 ; Shuffield vs. Buckley, 45 111. R. 223.
202 SUPREME COURT.
Greenup v. Stoker.
Darius Greenup, appellant, v. Nancy Stoker, appellee.
Appeal from St. Glair.
The rule of the common law, which prohibits the party calling a witness pro-
posing to him such questions as will indicate the answer which is desired to
be obtained, has not, in practice, usually been considered so strict and imper-
ative as to divest the courts of a reasonable discretion in permitting questions
to be asked and answered, which may be leading in their character, and es-
pecially so, when the same is only introductory to the more material mat-
ters directly in issue.
On the trial of an action for a breach of a promise to marry, a witness, intro-
duced by the plaintiff, was asked the following question: *'Did he court
her ?" The question was objected to by counsel for the defandaut, but the
objection was overruled: Held, that it was neither objectionable in form,
nor in substance; that it was an inquiry about a mere matter of fact, which
could be answered by a person of common observation.
The rules applicable to contracts of marriage do not differ materially from
those governing contracts in general. Where there has been an absolute, un-
qualified refusal to perform a contract of this nature, the law will not require
of the injured party either a request or offer of performance. It is enough
that (here has been a promise and a refusal inconsistent with the promise.
Where there are several counts in a declaration, and a general instruction is
asked, which is a correct principle of law and applicable to some of those
counts and to the evidence given under them, the giving of such instruction
to the jury is not a cause of error.
A court will not grant a new trial, or reverse a judgment on error, because of
the admission of improper, or the rejection of proper testimony, or for want
of proper direction or misdirection of the Judge, who tried the cause,
provided the court can clearly see, by an inspection of the whole record, that
Justice has been done, and that the error complained of could not have affec-
ted the merits of the cause, or influenced the verdict of the jury.
A request to marry, or the refusal, as well as the promise, may be proved by
circumstances.
The doctrine laid down by this court,in the case of Guykowski v. The People,
1 Scam. 476, in regard to the disqualification of aliens to sit as jurors, is limi-
ted to capital cases.
Suits on such contracts, (a)
Assumpsit in the St. Clair Circuit Court, brought by the
appellee against the appellant, and heard before the Hon.
Gustavus P. Koerner and a jury, at the October term 1846.
Verdict for the plaintiff below for $525.00, upon which the
court rendered judgment.
The pleadings, instructions asked, &c, appear in the
opinion of the court.
(a) Tubbs vs. Kleek, 12 El. R. 446 ; Fider vs. McKinley, 21 111. R. 313 ; Burnet vs.
SLmpkins, 24111. R. 264 ; Prescott vs . Guyler, 32111. R. 312.
DECEMBER TERM, 1846. 203
Greenup v. Stoker.
L. Trumbull, for appellant, relied upon the following points
and authorities for a reversal of the judgment :
1. It was erroneous to permit Fulweiller, who had seen the
parties together but once, to give his opinion as to the charac-
ter of the attention paid by Greenup. The witnesses should
state facts, and it is for the jury to draw conclusions. The
question, " Did he court her ? " was also leading, and therefore
improper. 1 Starkie's Ev. 150, 15*2.
2. If no time or place for the marriage is]appointed, which was
the case in all the counts except the first, an offer to perform
must be alleged and proved ; allegations of readiness and will-
ingness are not sufficient. Bucks v. Shane, 2 Bibb, 341 ; Mar-
tin v. Patton, 1 Littell, 235 ; G-ough v. Farr, 12 Eng. Com.
Law R. 293 ; Gould's PL 176.
The first instruction given on the part of the plaintiff, which
was general to all counts, that it was not necessary for plaintiff
to prove a request, and was therefore erroneous. Coke v. F err all,
13 Wend. 285 ; Porter v. Rose, 12 Johns. 209 ; Tapping v.
Root, 5 Cowen, 204 ; Nelson v. Bostwick, 5 Hill's (N. Y) R.
37 ; 1 Chitty's PL 363 ; 1 Saunders, 33, note 2.
3. The third count is upon a special contract made and to be
performed at a certain time ; and the third instruction given on
behalf of plaintiff, that the time of making the marriage contract
and the time of the refusal by Greenup need not be proved pre-
cisely as laid, and that proof of different times would sustain the
declaration, was erroneous when applied to this count ; and for
the same reason the third instruction asked by the defendant
should nave been given. The allegata and prabata must corre-
spond.
4. The eleventh instruction asked by the defendant should
have been given.
5. The fifth count of said declaration, which is on a promise
to marry on request, avers no request, and is therefore defective,
and the instruction to disregard it should have been given. Rev.
Stat. 417, § 25 ; Bach v. Owen, 5 Johns. 409.
6. A special request and refusal being alleged in the first
and second counts, it was incumbent on the plaintiff below
204 SUPREME COURT.
Greenup v. Stoker.
to prove said request was laid, and that the instructions to that
effect asked by defendant should have been given.
7. The verdict was manifestly contrary to evidence, and for
this cause a new trial should have been granted.
8. The fact that two of the jurors who rendered the verdict in
said cause were aliens, which fact was unknown to the defen-
dant till after the rendition of the verdict, is a ground for a new
trial, and the court erred in not granting it. Guykowski v.
The People, IScam. 476.
The want of a freehold qualification in one of the jurors is a
ground for a new trial, if the fact was not known to the party
making the motion at the time of the trial. Briggs v. Georgia,
15 Vt. 61 ; King v. Tremaine, 16 Eng. Com. Law R. 318.
W. H. Underwood, and J. Gillespie, for the appellee.
A witness may be asked whether, from the appearance of
parties, they were or were not sincerely attached. McKee v.
Nelson, 4 Cowen, 257.
A leading question is no ground for error. It is addressed
to the sound discretion of the court. 2 Phil. Ev. 724, note
506; Warren v. McHatton, 2 Scam. 33 ; 1 Starkie's Ev. 151.
The question in this case was not leading. It only called
the attention of the witness to a collateral fact. Williams v.
Jarrot, 1 Gilman, 130 ; Leonard v. Thomas, 4 Scam. 557,
558.
The time and place of making contract must be alleged, but
need not be proved. Martin v. Patton, 1 Littell, 236 ; 1
Greenl. Ev. 56.
Injury to plaintiff's character is a proper subject for the con-
sideration of the jury in assessing damages. Johnson v. Cal-
kins, 1 Johns. 119. The damages depend upon the peculiar
circumstance of each case. 2 Tidd's Pr. 875 ; Southron v.
Rexford, 6 Cowen, 261.
Greenup failed to use due diligence, by inquiring of
jurors as to their competency. 2 New Hamp. 360 ; People v.
Jewett, 6 Wend. 389 ; Crawford v. Breagle, 1 Ala. 593 ;
Simpson v. Pitman, 13 Ohio 367 ; Jeffries v. Randall, 14
DECEMBER TERM, 1846. 205
Greenup v. Stoker.
Mass. 206 ; Amherst v. Hadley, 1 Pick. 41, 42; Vennum v.
Harwood, 1 Gilman, 661 ; 15 Verm. 73. It is no ground for
a new trial that one of the jurors was an alien. 2 Peters'
Cond. R. 499 and 500 ; 15 Eng. Com. Law R. 253
The informality of the verdict should have been objected to
in the court below, or it is waived. Schlencker v. Risley, 3
Scam. 487 ; Bank v. Batty, 4 Scam. 202.
A refusal to marry dispenses with the necessity of a request.
2 Chitty's PI. 322, n.
The opinion of the court was delivered by
Purple, J.* This action was instituted by the appellee
against the appellant, to recover damages for the breach of a
marriage contract.
The declaration contains five counts, to one of which (the
fourth) the circuit court sustained a demurrer.
The first count is upon a promise to marry within a reason-
able time, and avers that such reasonable time has elapsed, and
that the appellee, to wit, on the 25th March, A. D. 1844, after
the making of the promise, requested the appellant to marry
her, and that he, upon such request, refused.
The second count is upon a promise to marry generally,
and avers that appellee has always been ready and willing to mar-
ry the appellant; and also that appellee, (to wit,) on the 20th
March, 1844, requested appellant to marry her, and that he
refused.
The third count is upon a special contract to marry the then
next morning, that is to say, on the 1st day of January, A. D.
1844, and avers a readiness and willingness on the part of ap-
pellee to perform the contract, and that appellant, although
often requested, on his part always wholly refused.
The fifth count is upon a promise to marry upon request, and
avers a readiness and willingness on the part of appellee to mar-
ry, and a positive refusal on the part of the appellant.
The appellant pleaded the general issue.
The jury found a general verdict for the appellee, and as-
sessed her damages at $525.
Young, J. did not sit in this case.
206 SUPREME COURT.
Greenup v. Stoker.
The circuit court, at the request of the plaintiff's counsel in
the court, instructed the jury :
1. That to entitle the plaintiff to recover, it is not necessary
that she should prove an express contract on the part of defen-
dant to marry her ; but that an agreement to marry may be
inferred from those circumstances which usually acconmany an
agreement to marry ;
2. That if the jury believe from the evidence, that the de-
fendant refused to marry plaintiff, then it is not necessary that
plaintiff should prove a request to defendant to marry her, in
order to maintain this action ;" and
3. That the time of making the marriage contract and
the time of refusal by Greenup need not be proved precisely
as alleged ; but proof of different times will sustain the declara-
tion if such times be before the commencement of this suit.
The counsel for the defendant below requested the court to
instruct the jury :
1. That in order to sustain the first count of her declaration
on the part of the plaintiff, it is necessary for her to prove a
request and refusal, and that unless the jury believe from the
evidence that the said Miss Stoker requested said Greenup to
marry her on the 25th of March, A. D. 1844, as stated in said
count, and that he refused upon such request so to do, they
must find for the defendant upon said first count ;
2. Thatunless it has been proved by testimony so as to satisfy
the jury of the fact that the said Miss Stoker requested said
Greenup to marry her on the 20th of March, A. D. 1844, as
alleged in the second count of said declaration, they are bound
to find for the defendant upon said second count ;
3. That unless the jury believe from the evidence that the
said Miss Stoker and the said Greenup mutually promised each
other to marry on the then next morning as alleged in said third
count, they must find for the defendant upon the third count of
said declaration ;" f
4. That unless they believe from the evidence that the
said Miss Stoker was ready and offered to marry the said
DECEMBER TERM, 1846. 207
Greenup v. Stoker.
Greenup, and that he refused to marry her at the time stated
in said third count, they must find for the defendant ;
5. That unless the jury believe from the evidence that
Miss Stoker and the said Greenup promised on the 31st day
of December, 1843, to marry each other on the next morning,
January 1st, 1844, and that she being ready, he actually re-
fused to marry her, they must find for the defendant upon
said third count ;
6. That the fourth count of the declaration is not before
the jury and that they have nothing to do -with it ;
7. That unless the jury believe from the evidence, that
the said Greenup promised to marry the, said Nancy Stoker
on request, and that upon being requested or without re-
quest, that having the opportunity, he refused to marry her,
they are bound to find for the defendant upon the fifth and
last count of the declaration ;
8. That the jury are bound to find in favor of the de-
fendant upon the first and second counts of said declaration
unless they believe from the evidence before them, that the
said Nancy Stoker requested said Greenup to marry her
and that he refused to do so ; that proof of the bare omission
or neglect of the defendant to marry the plaintiff even after
he has agreed to do so is not sufficient to entitle the plaintiff
to recover upon either of said counts ;
9. That unless it has been proved by testimony that the
said Nancy Stoker requested the said Greenup to marry her,
and that he refused upon such request to do so, or that some
acts were done by the parties which in their opinion are
tantamount to a request and refusal, they are bound to find
the issues upon the first, second and fifth counts for said
Greenup, although they should believe from the evidence
that he once promised to marry the said Nancy ;
10. That even should the jury believe from the evidence,
that Greenup promised generally to marry the said Nancy
Stoker, or to marry her in a reasonable time, or on request,
without agreeing upon any particular time, still they cannot
find in her favor upon such proof without proof, also, that she
subsequently requested said Greenup to marry her and he
refused to do so ;
208 SUPREME COURT.
Greenup v. Stoker.
11. That this suit is brought to recover damages for a
breach of contract, and in no event will the jury be justified
in giving any other or greater damages than justly arise out
of a failure to perform said contract, should they believe
that one existed ;
12. That it is not proper for the jury, in their estimate
of damages, should they even find for the plaintiff, to take
into consideration any injury to the plaintiff's reputation or
character ; and
18. That the jury should disregard the fifth and last
count of said declaration, because the same is faulty.
The court gave the 6th, 7th, 8th 9th and 10th instruc-
tions, and also the 11th and 12th, qualified as follows :
11. That this suit is brought to recover damages for a
breach of contract, and in no event will the jury be justified
in giving any other or greater damages than justly arise out
of a failure to perform said contract, should they believe
that one existed ; but the injury inflicted to the feelings
of the plaintiff, and to her standing in society, are conse-
quences which may justly arise out of the contract ; and
may be taken into the consideration of the jury in the
assessment of damages.
12. That it is not proper for the jury in their assessment
of damages, should they even find for the plaintiff, to take
into consideration any injury to the plaintiff's reputation or
character, only so far as it may be a consequence of the
non- performance.
The residue of the instructions asked by the counsel for
the defendant below were refused, and an exception taken to
the opinion of the court in denying the same, and qualifying
the eleventh and twelfth instructions, as above stated, and
also to' the giving of those asked by the plaintiff below.
Tne bill of exceptions contains all the evidence in the cause.
During the progress of the trial before the jury, a witness
testified that he had known the parties since 1838 ; saw appel-
lant pay attentions to appellee ; these attentions commenced
in the fall of 1838, and continued four or five years, &c,
&c. The counsel for the appellee then asked the witness,
"Did he court her?'' This queston and the answer to the
DECEMBER TERM, 1846. 209
Greenup v. Stoker.
same was objected to, the objection overruled, and an excep-
tion taken. Witness answered, "yes, it was my impression. "
The same counsel then asked the following question: "How
long did he court her?" Witness answered, "four or five
years. " This question and answer also objected to, object-
tion overruled, and exception taken.
Upon the return of the verdict of the jury, the appellant
moved the Court to set the same aside and grant a new trial.
1. Because the verdict was contrary to evidence ;
2. Because it was contrary to law ;
3. Because the damages were excessive ;
4. Because the Court misdirected the jury;
5. Because the Court refused to give proper instructions ;
and
6. Because two of the jurors who tried the cause were
aliens and not naturalized citizens of the United States,
which fact was unknown to appellant till after the verdict
was rendered.
The last reason assigned is supported by the affidavit of
appellant, which is made part of the record, that two of the
jurors were alien born, and had not been naturalized, and
that * this fact was unknown to him and as he was informed
and believed, to his counsel, until after the return of the
verdict.
The motion for a new trial was overruled, and judgment
rendered on the verdict, to which decision the appellant also
excepted.
The appellant now assigns for error :
1. That improper questions were allowed to be asked,
and improper testimony to be given in evidence to the jury ;
2. That illegal and improper instructions were given to
the jury ;
3. That legal and proper instructions were refused ;
4. That the motion to set aside said verdict and grant a
new trial was refused when said verdict was contrary to both
law and evidence, and was rendered by a jury, part of whom
were aliens, which fact was unknown to the defendant or
his counsel till after the rendition of said verdict ;
gil. in — 14
210 SUPREME COURT.
Greenup v. Stoker.
5. That judgment was rendered upon a verdict finding
only one of the issues for the plaintiff, without specifying
which, or making any disposition of the other issues ; and
6. That judgment was rendered for the plaintiff, when,
by law, judgment should have been rendered in favor of the
defendant.
The first point made by the appellant is, that it was erro-
neous to permit Fulweiler, one of the defendant's witnesses to
state his opinion as to the character of the plaintiff's atten-
tions to the defendant.
This witness had testified that he had known the parties
since 1838. That he had seen appellant pay attentions to
the appellee. That these attentions commenced in the fall
of 1838, and continued four or five years ; was in the habit
of observing this several times. That he waited on her as a
gentleman would wait on a lady. Saw him walking with her ;
could not say attentions were frequent. Saw him walking
with her once from ^church, and but once. Here the counsel
asked the witness, "Did he court her?" The witness an-
swered that such was his impression.
This question and answer were objected to, and the objec-
tion overruled by the court ; and it is urged that the ruling
of the court was erroneous, both on account of the impro-
priety of the evidence and the leading character of the in-
terrogatory proposed to the witness.
However much we may be disposed to question the policy
of the continuance of the established rule of the Common
Law, which prohibits the party calling a witness, proposing
to him such questions as will indicate the- answer which is
desired to be obtained, the practice has been too long settled
and acquiesced in to be disturbed, except by legislative
intervention. Originally it may have been a useful and
necessary method of eliciting- truth. It was based upon the
supposition that the witnesses were inclined to favor the
party by whom they were called, and to testify in his favor
if they could but receive an intimation of his wishes. It
would be but charitable to conclude that the necessity which
introduced the doctrine has for a long time ceased to exist.
DECEMBER TERM, 1846. 211
Greenup v. Stoker.
This rule, however, in practice has not usually been cos-
• sidered so strict and imperative as to divest the courts of a
reasonable discretion in permitting questions to be asked and
answered which may be leading in their character, and es-
pecially so when the same is only introductory to the more ma-
terial matters directly in issue ; and seldom, if ever, has it
been considered that a mere practical error in this respect would
afford even the slightest grounds for a new' trial, or to reverse a
cause on error. The witness is present in court, and may be
subjected to such cross-examination as would tend to elicit the
truth, or to satisfy the court and jury how far he is entitled to
credit, whether the interrogatories which he has answered have
been leading or otherwise, (a)
Having said thus much in relation to the form of the question
proposed to this witness, I proceed to the character of the evidence
and the propriety of permitting the witness to answer the inter-
rogatory. The point has been argued by counsel upon the as-
sumption, that the witness has been permitted to express an
opinion upon some matter involving the exercise of science or
skill, without having first laid the foundation for such testimony
by proof of his ability and qualifications to form a correct con-
clusion upon the subject matter about which his opinion is so-
licited. To the court it appears to be an inquiry about a mere
matter of fact, which could be answered by any one who had the
requisite knowledge, without the aid of any science or skill,
except common observation and universal experience, and which
might have been obvious to the senses of any man of ordinary
understanding and discernment. It is universally understood to
mean those attentions which a man pays to a woman when he
manifests an intention to engage her affections. In the common
language of the country, to court or to pay attentions to a
lady, are synonymous terms. The latter is but a method slightly
more refined and genteel of expressing the same thing.
The second point made by the counsel for the plaintiff
involves the consideration of the sufficiency of the decla-
ration and several of the instructions given and refused, as
(<t) Williams vs. Jarrot,! Gil. R. 130.
212 SUPREME COURT.
Greenup v. Stoker.
applicable to particular counts of the same ; and it is con-
tended, that if no time or place for the marriage is appointed,
an offer to perform must ^be alleged and proved, and that
allegations of readiness and willingness are insufficient.
The rules applicable to contracts of marriage do not differ
materially from those governing contracts in general. In
both, the intention of the parties must be collected from the
terms employed, whether the contract be verbal or in wri-
ting, and their rights and liabilities determined accordingly.
In the case of mutual and dependent promises, neither can
maintain an action without first showing a willingness and
an offer to perform on his part, or that the other party has
done some act dispensing with such offer. 1 Saund. 33 ;
Bach v. Owen, 5 Term R. 109 ; Porter v. Rose, 12 Johns. 208;
Topping v. Root, 5 Cowen, 404 ; Cook v. Farrell's Adm'rs,
13 Wend. 285 ; Nelson v. Bostwick, 5 Hill's (N. Y.)R.3T.
• So, also, in actions for breaches of marriage contracts it
has been held, that in such action for not marrying in a
reasonable time the plaintiff must aver a request to many or
make some other allegation to dispense with it. 1 Chitty's
PI. 363.
" Marriage contracts do not differ in principle from other
species of contracts where mutual and concurrent acts are
to be performed. Neither party to such contract can main-
tain an action against the other without showing performance
or an offer to perform ; and when the time and place of per-
formance are not fixed by the agreement of the parties to
entitle either to an action, an averment of an offer to marry
is indispensably necessary." Burks v. Shaine, 2 Bibb, 341.
If the declaration be upon a promise to marry upon re-
quest, or in a reasonable time, the plaintiff must aver and
prove a special request, or an offer to perform : a bare alle-
gation of readiness and willingness is not sufficient. Martin
v. Patton, 1 Littell, 234.
It is not, however, to be supposed that the law intended
to impose upon the party, who had been guiltless of a violation
of a marriage or other contract, and who was entitled to re-
cover damages for a breach thereof by the other, the unmean-
DECEMBER TERM, 1846. 213
Greenup v. Stoker.
ing, idle ceremony of either a request or offer of perform-
ance, where there had been an absolute unqualified refusal.
Such strictness is not required, even in cases of ordinary
traffic when money is to be paid or tendered as a condition
precedent to the party's right to insist upon performance.
The necessity of such a tender may be waived by a previous
refusal to receive the money. And will it then be said, that
when the marriage contract has been fairly and freely made,
and the mutual affections of the parties sacredly pledged to
its solemn consummation and fulfilment, that she whose heart
has been betrayed into unrequited or forgotten love, whose
young hopes have been blighted by cold neglect and cause-
less infidelity, scorned, refused, despised, must still submit
to the humiliating task, the senseless mockery of tendering
her hand to the man of broken 'vows and dishonored faith,
before the law can interpose that feeble, paratial remedy
which it affords in her behalf ? Happily, it demands no such
useless sacrifice of sense to sound, or substance to mere
form.
It is enough that there had been a promise, and a refusal
inconsistent with the promise. When this appears, an offer
or request is wholly unnecessary. 1 Chitty's PL 363 ;
Gough v. Fair, 14 Eng. com. Law R. 294. This veiw of
the law disposes of the objection made to the fifth count in
the declaration, and shows, that in the refusal of the court to
direct the jury to disregard to same as being faulty, there
was no error.
The count is upon a promise to marry on request. It avers
a readiness and willingness on the part of the defendant to
marry ; and contains a special allegation that on the 20th of
March, A. D. 1844, the plaintiff positively, wrongfully and
injuriously refused and wholly declined to marry, contrary to
his promise and undertaking, &c.
It is the opinion of the court, both upon authority and the
reason of the case, that this count is good in substance, and
that the court decided correctly in refusing to direct the
jury to disregard it.
I will, now briefly notice several of the instructions which
214 SUPREME COURT.
Greenup v. Stoker.
were given and refused by the court, together with their ap-
plication to the respective counts of the declaration. The
principle objection taken to the instructions asked by the
plaintiff below, as to the third, upon the ground that it is gen-
eral and applicable to all the counts, and that this instruction
is erroneous when applied to the third count of the declara-
tion, for the reason that this count is upon a special contract
made and to be performed at a certain time.
We regard this objection as a sort of special demurrer to
the instruction, for the first time attempted to be set up, and
insisted upon in this court. No such reason appears to have
been urged against it in the court below. There the objec-
tion and exception was general, that the proposition was
illegal. Here the exception is special, that it is inapplicable
to a particular state of facts, about which, as I shall hereaf-
ter show, there was no evidence or controversy. The
instruction was general, it was a correct proposition of law,
and applicable to several counts of the declaration and to
the evidence given under them. It would be a refinement
upon technicality indeed, and would amount to a denial of
justice if we were to reverse a judgment upon such grounds.
I shall pass over the first, second, fourth and fifth instruc-
tions asked by the plaintiff's counsel, and refused by the
court, with the single remark, that they were all properly
refused for the reason that they attempt to make the time of
the promise, request, or offer on the part of the defendant
material, when in law, the same is immaterial.
Upon the questien presented by the refusal of the circuit
cvurt to give the third instruction asked by the appellant's
counsel, we have had considerable difficulty in arriving at a
conclusion. We have not finally done so without some hesi-
tation.
The proposition was strictly a legal one, and directly ap-
propriate to the third count of the declaration, to which alone
it was sought to be applied. The authorities upon this point
have been carefully and critically examined.
It is no new doctrine that a new trial will not be granted
or judgment reversed on error, on account of the Judge who
DECEMBER TERM, 1846. 215
Greenup v. Stoker.
tried the cause having given improper or withheld proper
instruction from the jury.
To show the propriety of this remark, and to collect au-
thorities from which to deduce a general rule applicable to
this and cases of like character, I will proceed to make ex-
tracts and references to several decisions, which have here-
tofore been made, bearing upon this question.
When the objection merely is, that what was proved by
one witness could have been proved by two, there being no
denial of the fact which he was called to prove, there is no
ground for the Court to interfere by granting a new trial.
It is no ground for a new trial, that a witness, who was com-
petent, was rejected upon the trial on the ground of incom-
petency, when the same fact was established by another
witness. Edwards v. Evans, 3 East, 452.
The Court will not grant a new trial on a technical ob-
jection in point of law to the direction of the Judge, when
they see that justice has been done, even though such misdi-
rection may have swayed the jury. Edmunds v. Mitchell,
2 Term. R. 4.
Though the Judge may have made some little mistake in
his directions to the jury, yet if justice be done, the Court
ought not to interfere. The Court are always bound to
determine how far the observation of the judge was materia
and affected the merits of the case. 5 do. 425.
The case of Seare v. Prentice, 8 East, 348, is quite analo-
gous on this point to the one now under consideration. The
plaintiff employed the defendant, who was a shoemaker, as
a surgeon, to reduce a dislocated limb. In his declaration,
he complained that the defendant had "negligently, igno-
rantly and unskilfully performed the operation." The evi-
dence showed negligence, but not want of skill. The Judge
charged the jury that if there was no negligence, the defend-
ant was not answerable for want of skill. The instruction
was held erroneous, as mere matter of law; but there being
no evidence of want of skill, it was considered that the opin-
ion of the Judge did not aflect the merits of the verdict upon
the evidence in the cause, and a new trial was refused.
216 SUPREME COURT.
Greenup v. Stoker.
When a question on a misdirection arises, the inquiry is
whether it was a materal point and affected the merits of the
case. The Court always make this inquiry, and they are
bound, in the exercise of a sound discretion, to do so, other-
wise there would be no end to new trials, and the remedy
would be worse than the disease. Fleming v. Gillbert, 3
Johns. 528.
The court are bound to judge how far the observation is
material, as well as erroneous. Doyle v. Lyon, 10 do. 417.
It is undoubtedly true, that a judgment will not be re-
versed on account of an erroneous opinion expressed or de-
cision made by the court, where it clearly appears that the
error did not or could not have affected the verdict or judg-
ment. But this very position implies that we are to look
beyond the letter of the exception into the case itself to as-
certain what the effect of the error was. Clark v. Dutcher,
9 Cowen, 680.
The same doctrine has been repeatedly recognized by this
Court in the case of Leigh v. Hodges, 1 Scam. 18 ; Gillet
v. Sweat, 1 Oilman, 475 ; Hill v. Ward, 2 do. 285.
From all thsre authorities the rule may be easily deduced,
that a Court will not grant a new trial, or reverse a judgment
on error, because of the admission of improper or the rejec-
tion of proper testimony, or for want of proper direction or
misdirection of the Judge who tried the cause, provided the
Court can clearly see, by an inspection of the whole record,
that justice has been done, and that the error complained of
could not have affected the merits of the cause, or influenced
the verdict of the jury, {a)
This being the rule, it remains to be seen whether the
plaintiff here has been injured by the refusal of the Court to
give this instruction, which we are free to admit was a legal
one, and might, without any impropriety, have been given.
Could the refusal to give this instruction have had any effect
upon the verdict of the jury ? We are clearly of the opinion
that it could not for two reasons :
First, because there was no evidence whatever applicable to
the count ; and
(a) Newkirk vs. Cone, 18111. R. 454 ; McClergvs. Mungen,46IU. R. 114.
DECEMBER TERM, 1846. 21 7
Greenup v. Stoker.
Second, because there was sufficient evidence to warrant
the finding under the other counts of the declaration.
If the instruction had been given, and the jury under it
had found for the appellant upon this count, and, as they did
find, against him upon the other counts, is there the least reason
for supposing that the verdict would have been lessened, or
in any respect changed, from what it was as returned by the
jury ? Is there the smallest probability that any sensible or
conscientious jury would estimate the damages any greater
for a breach of promise to marry " the then next morning,'
than for a violation of any agreement to marry "upon request'
or in a reasonable time ;" or, that if it had been clearly
shown that all three of the promises had been made and bro-
ken at the same time, instead of one, that it would have pro-
duced any different result ? In either event the misfortune?
the disappointment, the injury to the defendant would have
been precisely tho same.
It will be unnecessary to enter into any detailed statement
of the evidence given upon the trial. It may, however, be
proper to state generally that if the witnesses are credible?
there is abundant testimony to sustain the promises and the
alleged breaches upon the first, second and fifth counts of
the declaration. The jury found their verdict generally upon
these as well as upon the third count. We cannot enter"
tain even a suspicion that the verdict would, or could have
been a fraction more or less, if this count had been stricken
from the record.
The qualifications given by the court to the 11th and 12th
instructions were strictly in accordance with law.
By the 11th, if given as asked, without explanation, the
jury would necessarily have been obliged to have settled the
legal proposition involved in the instruction, as to what
damages justly arose out of a failare "to perform the con-
tract." It was, therefore, not only proper, but important,
that they should be advised by the court, of the character
of those damages which might thus "justly arise," and of the
nature of the circumstances to be considered in estima-
ing them.
218 SUPREME COURT.
Greenup v. Stoker.
This advice was correctly given in this instruction as
modified by the court.
We are unable to perceive anything erroneous in the
qualifications to the 12th instruction. It directs the jury that,
. in their assessment of damages, they should disregard any
injuries inflicted to the character of the plaintiff below,
except so far as might result as a consequence from the non-
performance of the contract.
The next point in order as made by the plaintiff's coun-
sel is, that the verdict is contrary to the evidence. And
under this division of the question it has been strenuously
urged, that the two most material witnesses, the father and
brother of the appellee, were so impeached in their general
characters for truth, that their testimony must be entirely
disregarded in the consideration of the cause. If this posi-
tion were admitted to be correct, we are by no means pre-
pared to say, that there would not still be sufficient evidence
remaining to warrant the finding of the jury. Contracts of
this sort are not usually made in the presence of witnesses,
but in private and secresy between the parties. For this
reason, the law has wisely provided, that they may reasona-
bly be inferred from unusual and marked attentions, and
long continued intimacy, and those manifestations of attach-
ment and regard which usually precede their consummation
Independent of the direct testimony of these two, several
witnesses have testified that the visits and attentions of the
plaintiff to the defendant, were constant and unremitted for a
period exceeding four years ; that they then ceased ; and one
witness also states, that about this time he declared his inten.
tion not to marry the appellant or any one else ; which fact
the witness shortly afterwards communicated to the defendant-
The request to marry, or the refusal, as well as the pro-
mise, may be proved by circumstances. Martin v Patton,
3 Littell, 234. But it is not for this court to decide, what-
ever may be their impression as to the weight of testimony
upon the subject, that the two witnesses before referred to
are unworthy of belief. That was peculiarly a question for
the jury, with which we are not at liberty to interfere. They
DECEMBER TERM, 1846. 219
Greenup v. Stoker.
were strongly corroborated by the other evidence in the case,
and under all the circumstances, the jury might well have given
credit to their statements, even if their general characters for
truth were questionable, about which it is unnecessary that we
should express any opinion.
The remaining question in this case is, whether the circuit
court decided erroneously in overruling the motion for a new
trial, for the reason that two of the jurors who sat upon the
panel and tried the cause were aliens, and unnaturalized ; and
that this fact was unknown to the plaintiff until after the trial
of the cause.
By the first section of chapter fifty eight of the Revised
Statutes, it is provided that "all free white male taxable'
inhabitants in any of the counties in this State, being natural
born citizens of the United States, or naturalized according
to the Constitution and laws of the United States and of
this State, between the ages of twenty one and sixty years,
not being judges of the supreme or circuit court, county
commissioners, judges of probate, clerks of the circuit or
county commissioners' court, sheriffs, coroners, postmasters,
licensed attorneys, overseers of the highways, or occupiers of
mills, ferries, toll bridges or turnpike roads, being of
sound mind and discretion, and not subject to any bodily in-
firmity amounting to a disability, shall be considered and
deemed competent persons, (except in cases where legal disabili-
ties may be imposed for the commission of some criminal
offence,) to serve on all grand and petit juries in and for the
bodies of their counties respectively."
This is the only statutory provision in our law relative to
the qualification and competency of petit jurors. By this
statute, as well as by the common law, unnaturalized aliens
are disqualified to serve on juries. Although we are aware
that it has been stated in the opinions of the court, delivered
in the case of Guykowski v. The People, that "an alien is
not capable in law to discharge the functions of a juror" ;
and that in relation to their competency, a distinction is
attempted to be drawn between such alien and others men-
tioned as exceptions in the act ; yet we find it extremely
difficult to understand the force and reason of the argument,
220 SUPREME COURT.
Greenup v. Stoker.
or upon what grounds it is contended that in the one case there
is an exemption merely from the performance of a duty, and in
the other a total disqualification, so as to render a verdict an en-
tire nullity.
All persons except aliens and others who are enumerated are
declared to be competent jurors. The inference would seem
to be, that those excepted are alike incompetent. We feel
compelled to state that we are not satisfied with the decision
to the extent to which it would seem to be carried by the
argument, in the case of Guykowski v. The People ; but,
as it was made in favorem vitse, in a case where a prisoner
is presumed to stand on all his rights, and to waive nothing
as applied to such a case, we are unwilling to disturb or over-
turn it.
Stability and uniformity of decisions in the judicial tribunals
of the country conduce much to the welfare and happiDess
of the people for whose benefit alone governments are insti-
tuted and administered ; and when a question has once been
settled by solemn adjudication, and no positive rule of law
has been violated or contravened, and no serious detriment is
likely to arise prejudicial to the public interest, such adjudication
ought to stand.
It is, however, requiring to much of mere men, even
although they may for the time being occupy the position of
judges of the courts, and as such, be entrusted with the
authority of determining controversies between citizens,
that they will not sometimes err in their opinions, and pro-
nounce judgments which are fundamentally wrong, and which,
if adhered to, would be productive of serious oppression and
incalculable evil. Such cases have frequently occurred and
will occur again with men of the profoundest learning and
purest morals. But when they have arisen, it has never
been considered more or less than an act of common honesty
on the part of the tribunal where the error had been com-
mitted, to acknowledge and speedily reform it. Although
we may doubt the correctness of the decision in the case
before referred to, as a rule applicable to all cases for reasons
and upon anthorities which will hereafter be shown and re-
ferred to, still, inasmuch as in the particular case then under
DECEMBER TERM, 1846. 221
Greenup v. Stoker.
consideration, and cases of a similar character, we cannot
perceive that the doctrine will be productive of any positive
evj, and will throw an additional safeguard around the life
of the citizen, which is one of the cherished objects of the
law, and as the contrary has not to our knowledge, in such
a case, ever been expressly ruled, we have reluctantly conclu-
ded that it is not indispensable to hold that it is not law.
We feel called upon, however, by a sense of justice and
propriety to limit the rule to capital cases. To extend it
farther and permit its application to felonies of a lower grade,
misdemeanors and civil suits, besides being opposed to the
strong current of authorities both in England and this
country, would be productive of much mischief, subvert the
ends of justice, and transform the trial by jury from a bul-
wark of protection around the rights and interests of the
citizen, into a piece of ingenious machinery to delude the
people with the semblance without the reality of justice. [<z]
Let us look for a moment at the consequences of such a
construction of the law as is here contended for, in ordinary
civil cases in this country. It is well known, and part of the
general history of the country, that, our population" is com-
posed to a considerable extent, of emigrants from almost all
portions of the world. From the peculiar character of our
institutions they become entitled, almost upon their arrival here,
to many of the privileges of natural born and naturalized cit-
izens ; they readily accommodate themselves to our habits,
laws and customs, and often with the knowledge and tacit as-
sent of the parties are permitted to serve on juries, and thus
to determine conflicting claims between citizen and citizen.
They are declared by law to be incompetent to act in such
capacity.
Judges, clerks, attorneys, millers, sheriffs, &c, &c, are
alike exceptions to the number and kind who are by law held
to be competent. But does it follow as a consequence that
the verdict rendered by either is a nullity ? That it cannot
be the verdict of a jury ? If so then the party in a civil as
well as a criminal case must be presumed to stand on all his
rights, and to waive none of them, when in truth the con-
la) Chase vs. People, 40 111. R . 356.
222 .SUPREME COURT.
Greenup v. Stoker.
trary is the established and well settled doctrine of the law ;
and the presumption, in such cases is, that all rights are
waived where the parties knowing* or having opportunity by
the exercise of reasonable diligence and attention, of know-
ing them, omit or neglect to insist upon or assert them. A
person, who upon bare inspection, is obviously and notori-
ously under the age of twenty one years is certainly as
incompetent as an alien ; he is not, according to the maxim
of the Common Law, a " lawful man " ; but if one were to be
called upon a jury, and the parties were present and per-
mitted him to try their cause without objection, I apprehend
that a motion for a new trial upon that ground would receive
but little favor or encouragement ; that the verdict would not
for such cause be void. Admit that it would be sustained
upon the principle that the parties had consented, wherein
would it differ, but in degree, from the present question ?
What, in a civil cause a party might by the exercise of
reasonable and proper diligence ascertain, he will in law be
presumed to know, and neglecting to avail himself of this
le^al knowledge at the proper time, he will not be permitted
to take the chances of a verdict in his J; favor, and afterwards
set up his own want of common prudence to avoid its conse-
quences. If the doctrine contended for should obtain, it
must often happen in this country that verdicts and judgments
will be set aside and reversed, when there is not even a pre-
tence that injustice has been done, at great and unnecessary
expense to parties, besides opening wide the door for the
practice of the grossest frauds, and the encouragement of
countless perjuries.
I propose now, to show upon authority, that in"! misde-
meanors and in civil cases at least, alienage, and other dis-
qualifications are grounds of challenge only, and cannot be
assigned as reasons for new trials or to reverse a cause on
error.
In the case of Hill v. Yeates, 12 East, 229, a son, who had
not been summoned upon the jury, answered to his father's
name and served in his place. Held to be no ground for
setting aside the verdict.
The court will not grant a new trial because one of the
DECEMBER TERM, 1846. 223
Greenup v. Stoker.
jurors was related to one of the parties, for the other party,
who might have challenged this person, ought to sufier for
his neglect. 6 Bacon, 661.
In the case of Simpson v. Pitman, 13 Ohio 365, three of
the jurors who sat on the trial, before they were impaneled,
had repeatedly expressed opinions publicly as to the merits
of the case ; that the defendant was guilty, &c. ; which the
defendant did not learn until after the rendition of the ver-
dict ; and it was held to be cause of challenge only, and no
ground for a new trial.
In Egleston v. Smiley, 17 Johns. 133, one of the jurors
who tried the cause was a half uncle of the plaintiff's wife.
The court say that " the objection to the juror, even if it
had been sufficient at the trial, is now too late to be made."
In Massachunetts, in a suit between the inhabitants of two
towns, one of the jurors was chosen and drawn at a meeting
of the inhabitants of Enfield, holden more than twenty days
before the sitting of the court at which the venire facias
was returnable, contrary to the statute, and it was decided
to be no ground for a new trial. 1 Pick. 40-1
A verdict, either in a civil or criminal case, will not be set
aside merely on the ground that one or more of the jurors
had not the property qualifications, &c. required by law. If
the objection is not raised when the juror is drawn, the par-
ties are concluded, although the fact may not have come to
their knowledge until after the trial. People v. Jewett, 6
Wend. 386.
It is admitted that these cases are not precisely, in point
of form, the case now under consideration. They are, how-
ever, strictly analogous. In some, the jurors had been irreg-
larly summoned or placed upon the panel ; in others, they
wanted the requisite qualifications to render them competent.
Aliens are only incompetent. But there is a case which de-
cides the very question which is here made. It is the case
of the King v. Sutton, 15 Eng. Com. Law R. 253. The de-
fendant was indicted for a conspiracy, and convicted. A
motion was made for a new trial, upon the ground shown by
the affidavit of a juror who sat upon the trial that he was an
alien ; and it farther appeared that this fact was unknown to
224 SUPREME COURT.
Greenup v. Stoker.
the defendant until after the trial. It was refused, upon the
ground that this was cause of challenge only.
In Pennsylvania, alienage is a good cause of challenge,
but it cannot be taken advantage of after verdict. Hollings-
worth v. Duane, 4 Dall. 353.
Against the weight and strong current of these decisions,
the court has been cited to some paragraphs in 6 Bacon, 661,
and to the case of Briggs v. Town of Georgia, 15 Verm. 61.
In Bacon, it is said, that " if there were good cause of
challenge to one of the jurors, but this was not known, and
consequently could not be taken advantage of upon the trial
the court will grant a new trial."
This doctrine, if it were intended to be general in its
application, is in conflict with the whole current of the au-
thorities in the English courts, and even with the paragraph
which I have before cited upon the same page of the same
work. The cases referred to in support of it in Bacon are
not within our reach. But we feel warranted in making the
inference, that they must have been of a special character
when, by the exercise of reasonable diligence, the cause of
challenge could not have been ascertained before the trial.
The case in the Vermont Reports is against the doctrine,
which we have under the authorities before cited, here ad-
vanced. It is, that the want of a freehold qualification in
one of the jurors is a ground for a new trial, if the fact was
unknown to the party making the motion at the time of trial.
The only authorities cited by that court in support of this
decision are 1 Conn. R. 401 ; Cro. Car.' 278.
Thus it will be seen, that the whole current and weight of
the decisions are against the position assumed by the appel-
lant here. From the peculiar position of our country, and
the diversified national character of its inhabitants, there
arises a strong, powerful, almost indispensable additional
reason why his construction of the law should be rejected.
From an attentive consideration of the whole case we are
satisfied that no injustice has been done, and that there is no
error in this record.
The judgment of the circuit court is affirmed, with costs.
Judgment affirmed.
DECEMBER TERM 1846. 225
Lalor v. Wattles.
Richard D. Lalor, plaintiff in error, v. William P. Wat-
tles, defendant in error.
Error to Will.
The voluntary branch of the Bankrupt Law of the United States, passed August
19, 1841, is constitutional and valid.
This suit was commenced before a Justice of the peace
on the 17th day of May, 1841, by Wattles against Lalor.
Wattles recovered a judgment for $81.44, and costs, from
which judgment Lalor took an appeal to the Will circuit
court.
At the May term, A. D. 1843, of said circuit court, the
bankruptcy of the defendant was suggested and the cause
thereupon continued. At the October term, Lalor filed his
plea of bankruptcy and final discharge from all his debts
under the United States bankrupt law then in force, to which
plea Wattles demurred, and assigned the following as his
ground of demurrer, to wit: That " that part of the Act of
Congress, entitled an Act to establish a uniform system of
bankruptcy throughout the United States, under which the
defendant pleads a discharge from his debts, is in violation of
the Constitution of the United States."
The Hon. Richard M. Young, the presiding Judge of the
Will circuit court, by agreement of counsel, took the cause
under advisement, and at the October term, A. D. 1844, sus-
tained the demurrer, to which judgment Lalor excepted, and
brought the case into this court by writ of error.
U. Oswood & W. E. Little, for plaintiff in error. H.
Dusenbury, on the same side, filed a brief argument in favor
of the constitutionality of the bankrupt law.
D. L. Gregg, for defendant in error, filed an elaborate
argument against the constitutionality of said law.
gll. in — 15.
226 SUPREME COURT.
Lalor v. Wattles.
The opinion of the court was delivered by
Lockwood, J. Wattles sued Lalor before a Justice of
the peace, who rendered a judgment in his favor for $84.44.
The cause was removed to the Will circuit court by appeal,
where Lalor plead his discharge, as a bankrupt, under the
act of congress, passed the 19th August, 1841. To this
plea Wattles demurred, on the ground that the voluntary
part of the bankrupt law violated the constitution of the
United States. The circuit court of Will county sustained
the demurrer, and gave judgment for the plaintiff below.
To reverse this judgment, the cause is brought to this court
by writ of error.
The only question submitted for our consideration is,
whether the voluntary part of the bankrupt law is a viola-
tion of the constitution of the United States. This is truly
a grave and momentous question. As it arises under the
constitution and laws of the United States, its ultimate
decision devolves on the supreme court of the Union, and
it is matter of deep regret that the question has not been
presented to that tribunal, whose determination can alone put
an end to all controversy on the subject. Fortunately, how-
ever, this court is not without strong indications of what
will be the decision of that court, whenever the question
shall be brought before it. The bankrupt act has been be-
fore most of the Judges of the supreme court on their
respective circuits, and questions either directly or indi-
rectly made as to its constitutionality, and we believe that a
decided majority of the Judges have pronounced the law to
be constitutional. If the supreme court of the United
States had expressly decided this point, it would be our
imperative duty to conform to their decision, (a) And when it
can be clearly ascertained, from the individual action of the
Judges, what will be their decision when the question shall
be presented to them in their collective capacity, it seems
to be reasonable that we should follow in the path thus indi-
cated. We do not, therefore, deem it our duty to enter into
any argument on the subject. This question has, however,
been argued before the supreme court of New York, and
{a)' Linn vs. State Bank, I Scam. R. 90, and notes.
DECEMBER TERM, 1846. 227
Hawks v. Lands.
the law held by that court to be constitutional. We, there-
fore, consider it incumbent on this court to decide that the
voluntary branch of the Bankrupt Act is constitutional and
valid.
The judgment of the court below is consequently reversed,
with costs, and the cause remanded.
Judgment reversed.
Matthew H. Hawks, plaintiff in error, v. Samuel Lands,
defendant in error.
Error to McLean.
If a declaration is defective in substance, and can be reached by a general de
murrer, or not being defective in substance, any new matter is introduced in
an amendment, showing a new or different cause of action, or extending in
any manner the liability of the defendant, he will, as a matter of right, be
entitled to a continuance.
Unliquidated damages arising of covenants, contracts, or torts totally dis-
connected with the subject matter of the plaintiff's claim, are not such claim
or demands as constitute the subject matter of set-off under the statute.
Interrogatories accompanying a commission to take a deposition need not be
copied into the deposition. It is sufficient if they were proposed to the wit-
ness, answered by him, and so referred to, that the Court can see that it was
fairly taken.
Assumpsit in the McLean circuit court, brought by the
defendant in error against the plaintiff in error, and heard
before the Hon. Samuel H. Treat without the intervention
of a jury, at the September term 1841, when a judgment
was rendered in favor of the plaintiff below for $419.43.
The pleadings and ruling of the court below are stated in
the opinion.
A. Lincoln, for the plaintiff in error.
As to the sufficiency of the plea of set-off, that it shows a
cause of action in covenant, see 2 Cond. R. 157, 160 ; 1 Ohio,
171-2 ; 2 Mass. 455 ; and that being such cause of action, it
may by our statute be sec off. Edwards v. Todd, 1 Scam.
464 ; Nichols v. Ruckels, 3 do. 298.
228 SUPREME COURT.
Hawks v. Lands.
As to the question of continuance, see Covell v. Marks, 1
Scam. 525 ; Ewing v. French, 1 Blackf. 170 ; Kelly v. Duig-
nan. 2 do. 420 ; and as to matter of substance, see 1 Eng.
Com. Law R. 136; Cooper, 286, 288, head paging ; 9 Johns.
291 ; 3 J. J. Marsh. 332.
J. B. Thomas, for the defendant in error, made the fol-
lowing points in answer to plaintiff's several assignments of
error.
That the court below denied defendant's motion for a con-
tinuance.
1. The record shows only a motion for a continuance,
which was on affidavit. The motion referred to by the bill of
exceptions does not show any other. That motion was pro-
perly overruled, as the facts in the affidavit were admitted.
2. If the record shows a motion on account of the amend-
ment, that was properly overruled. 1 A. K. Marsh. 561.
The amendment was not one of substance. Covell v. Marks,
1 Scam. 525 ; Bre. 37 ; 1 Eng. com. Law R. 136.
First. The third count showed a sufficient cause of action with-
out this amendment.
Second. It-was only defective in the matter of uncertainty.
Third. The evidence admissible under the count as amend-
ed was admissible under the common counts, and under the
third count before amendment.
LT. As to the second error assigned. This is untrue in point
of fact. The court did sustain demurrer to the third count.
There was no plea to the third count.
LTL The defendant took leave to amend his plea of set-off,
and did amend it. He therefore cannot now assign for error
that the demurrer was sustained to that plea. And as to amend-
ed plea, this court cannot inquire into its legal sufficiency, be-
cause it nowhere appears upon the record. Oilman's Dig.
596 ; Bre. 19 ; 1 Scam. 281 ; lb. 310 ; 2 do. 355 : lb. 77 : 3
do. 92.
TV. The " exceptions to deposition were properly over-
ruled. The deposition of Tompkins does appear to have
DECEMBER TERM, 1846. 229
Hawks v. Lands.
been taken on the interrogatories attached to the commission,
which is all that is required bylaw. See Gale's Stat. 244, § 1 ;
lb. 245, § 3.
First. This appears by examination of the dedimus and in-
terrogatories returned by the commissioner, as required by the
•same section of the law.
Second. The requisition of the law, that the interrogatories
shall be reduced to writing, &c. is merely directory to the com-
missioner, and the want of a literal compliance with it will not
vitiate the deposition. It was so decided in reference to another
branch of this same requsition. lb. § 3 : Ballance v. Underbill,
3 Scam. 457.
The opinion of the court was delivered by
Purple, J.* This was an action of assumpsit commenced by
Lands against Hawks, in the circuit court of McLean county.
The declara tion contained three counts :
First, for money lent and advanced, paid, laid out and ex-
pended, and for money had and received to the use of the defend-
ant in error ;
Second, upon an account stated ;
Third, upon a special count alleging that Lands and Hawks
had been partners in trade and had dissolved ; that the property
and claims of the firm had been transferred to Hawks, who had
agreed to pay all the debts of the firm ; that Hawks had refused
to comply with this agreement, and Lands had been compelled
to pay $500 of said debts. This count, by leave of the court,
was amended so as to state that this payment of $500 was made
to Thomas C. Rockhill & Co.
At the same time when this amendment was allowed, Hawks
moved for a continuance which was overruled, and an exception
taken. Upon the same day, and as it appears by the record,
before the amendment made to the third count in the declaration,
Hawks filed three pleas :
First, non assumpsit ;
Second, a special plea of set-off, that in the year 1838
*Wilson, C. J. and Lockwood , J. did not sit in the case. Thomas, J.
having been of counsel, took no part in its decision.
280 SUPREME COURT.
Hawks v. Lands.
Lands conveyed to him lot Mo. (1) in Yager's addition to the
town of Washington, for the consideration of $1200, with a
covenant of seizin, alleging a breach of said covenant and claim-
ing a set-off of the consideration money. A demurrer was sus-
tained to this plea.
Third, a plea of payment.
Depositions had been taken in the cause to which an exception
was filed by Hawks ; that the interrogatories which accompanied
a commission, and were returned with it, were not
written out at length in the deposition ; but it appeared that
they were proposed to the witness by their numbers and a
few of the first words of each. The exception was over-
ruled.
The errors relied upon by the plaintiff are, — the overruling
the motion for a continuance, the sustaining of the dernurrer to
the second plea, and the overruling of the exception to the
deposition. The court is of opinion that there is no error in this
record.
The amendment to the third count was unnecessary and
immaterial. It is shown by the record that the circuit court
did sustain a special demurrer to this count. The demurrer,
however was filed after the plea of non assumpsit to the
whole declaration and issue upon the plea, consequently the
demurrer to a particular count was irregular, and will not
be noticed in this court. The demurrer was a special one,
and only reached supposed formal defects in the count ; con-
sequently, if it had been filed before the plea, the decision here
would have been the same. The count, without the amend-
ment, was good in substance. The defendant could have given
all the evidence under it, that he could have been permitted
to introduce under the amendment. No new matter essential
to the cause of action or demand was introduced into the
court. It was only a more particular specification of the
defendant's claim, as originally set out in the declaration. In
fact, it defined and limited, rather than enlarged and extended his
cau»e of action.
The authorities cited do not sustain the plaintiff's position up-
on this point.
The case in the 1st English Com. Law R. 136, decides
DECEMBER TERM, 1846. 281
Hawks v. Lands.
that an issue made upon a general allegation of the breach
or performance of the conditions of a penal bond is an im-
material issue. That case differs from the one under con-
sideration in this: That the count here alleges, not only that
the defendant below had not performed his promises and
undertakings, but also, that the plaintiff in that court had
been compelled to pay the sum of $500 to the creditors of
the firm. Had it contained only the first allegation, the
cases would have been parallel and the issue immaterial.
In the case of Covell v. Marks, 1 Scam. 205, the amendment
made was by adding to the description of the note, the words
"with twelve per cent, interest from date until paid." This
amendment was held to be material, and properly so. It
made another and different cause of action ; it extended and
enlarged the defendant's liability, and without the amend-
ment, there would have been such a variance between the
note declared on and the one offered as would have exclu-
ded the evidence upon the trial.
In the case of Ewing v. French, 1 Blackf. 170, French
had sold Ewing a quantity of wheat, for which Ewing was to
pay in flour when requested. The declaration was amended
so as to aver a demand for the flour. The amendment was
held to be matter of substance and necessary to the plain-
tiff's right to recover. In the course of their opinion the
court held the following as the t.ue rule which should
govern in these cases: "The substantial parts of a declar-
ation are those things which are material in constituting the
plaintiff's right to recover ; the omission of which lies within
the reach of a general demurrer."
The same doctrine is re- affirmed in the case of Kelly v.
Duignan, 2 Blackf. 420. The action was covenant. The
amendment introduced the words, "by his certain writing
obligatory." They were neld to be essential, as descriptive
of the instrument sued on, and the court say that if the
cause had proceeded to judgment without the amendment,
it would have been reversed on error.
The reasonable rule upon this subject is, that if a declara-
tion is defective in substance, and can be reached by a
232 SUPREME COURT.
Hawks v. Lands.
general demurrer, or, not being defective in substance, any
new matter is introduced in an amendment, showing a new
or different cause of action, or extending in any manner the
liability of the defendant, he will, as a matter of right, be
entitled to a continuance. (a)
We are also clearly of opinion, that the demurrer to the
plaintiff's second plea was properly sustained. Unliqui-
dated damages arising out of covenants, contracts, or torts
totally disconnected with the subject matter of the plaintiff's
claim, are not such "claims or demands" as constitute the
subject matter of set-off under our Act of Assembly. To
give this construction to the statute would invest justices
of the peace with full jurisdiction over questions involving
the title to and covenants concerning real estate, compel
parties to litigate all their rights, of whatever nature or kind,
in one action, and result in irremediable injustice and end-
less confusion. (6)
The cases of Edwards v. Todd, 2 Scam. 462, and Nichols
v. Ruckels, 3 do, 298, have only gone the length of deciding
that damages arising out of the contract on which the suit is
brought are properly the subject matter of set-off in such
suit. These decisions are within the true meaning and spirit
of the law. We find no warrant in the lav? for extending
the doctrine so as to permit it to embrace the subject matter
of this plea.
The last point made by the plaintiff's counsel is not much
relied on. The decision of the court was right. There was
no necessity that the interrogatories aocompanying the com-
mission should be copied into the deposition. It is enough
that they were proposed to, and answered by the witness,
and so referred to, that it could be seen by the court that
the depositions were fairly taken. The design of omitting
the interrogatories was probably to save expense to the par-
ties. If so, it was a laudable one, and, as in general it can-
not operate unjustly, worthy of imitation.
The judgment of the Circuit court is affirmed, with costs.
Judgment affirmed.
ta) Miller vs. Metzger, 16 m. R. 390 ; C. &M. R. R. Co. vs. Palm, 18 111. R. 22.
<b) Sargent vs. Kellogg, 5 Gil. R. 280 ; Bush vs. Kindered, 20 1U. R. 94 ; DeFores
>~.<Jder, 42 HI. 502.
DECEMBER TERM, 1846. 233
Russell v. Hadduck.
Jacob Russell, appellant, v. Edward H. Hadduck, appellee.
Appeal from Cook.
If a note or bill is taken, before it is due, absolutely in payment and satisfac-
tion of a precedent debt, and in the usual course or business, that is a suf-
ficient consideration to protect the holder against any equities which might
exist as between any previous parties to the note or bill, (a)
The rule undoubtedly is, that when a party is about to receive a bill or note, if
there are any such suspicious circumstances attending the transaction or
within the knowledge of the party as would induce a prudent man to inquire
into the title of the holder, or the consideration of the paper, he shall be
bound to make such inquiry ; or, if he neglects to do so, he shall hold the bill
or note subject to any equities which may exist between the previous par-
ties to it.
The true principles upon which a banker 's lien must be sustained, if at all, is
this : There must be a credit given upon the credit of the securities, either
in possession or expectancv.
Assumpsit in the Cook County Court, brought by the appel-
lee against the appellant, as acceptor of a certain bill of ex-
change. The case was heard at the February term of said court,
1846, before the Hon. Hugh T. Dickey, without the intervention
of a jury.
It was taken under advisement, and on the 30th day of October,
1846, the court decided in favor of the plaintiff for the amount
of the bill declared on, &c. The defendant excepted to the
decision, and moved for a new trial, which motion was over-
ruled, and judgment rendered for the plaintiff.
The cause was submitted in this court upon written argu-
ments of counsel.
M. Skinner, for the appellant, cited 4 Mass. 372, and Bailey
on Bills, 114, 544.
J. Young Scammon & N. B. Judd, for the appellee, cited
Swift v. Tyson, 16 Peters, 1, and Bank of Metropolis v. New
England Bank, 1 Howard's (US) R. 234.
The opinion of the court was delivered by
Caton, J.* One Gracie drew a bill of exchange in favor
(n) Conklin vs. Vail. 31 111. B. 166 ; Foy vs. Blackstone, 31 IU. R. 542 ; Manning vs.
McClure, 36 m. R. 490; Butters vs. Haughwont, 42 IU. R. 18.
/ *DESTNrNG, J. did not sit in this case.
234 SUPREME COURT. ™~
Russell v. Hadduclr.
of John T. Smith & Co. of New York city, on Russell for
$180.85, which was accepted by him. The bill was indorsed
by Smith & Co. to Newberry & Burch, of Chicage, to whom
it was sent for collection. John T. Smith & Co. were bank-
ers and brokers in New York city, and Newberry & Burch
were engaged in the same business in Chicago. These two
firms were correspondents of, and depositaries for each
others ; and when money was collected by one for the other,
it was entered in the cash account as a credit. Before the
maturity of the bill, Smith & Co. failed, upon learning which,
Newberry & Burch, by their successors in business, J. H.
Burch & Co., sold the bill to the plaintiff below, for which he
gave them in payment a check on J. H. Burch & Co. After
the sale of the bill to Hadduck, and before its maturity, one
Tuckerman presented an order from John T. Smith & Co. to
J. H. Burch & Co., requesting them to deliver the bill to
Gracie, the drawer.
Although I do not think it is^proved, yet I shall assume for
the present that the case shows that the bill was in fact
drawn merely for the purpose of collecting the amount of
Russell, and that Smith & Co. never paid Gracie anything
for it, and that Newberry & Burch gave Smith & Co. nothing
for it. At the time of the failure of Smith & Co. the bal-
ance was against them and in favor of Newberry & Burch
more than the amount of this bill. Before the commence-
ment of this suit against Russell, he was notified by Gracie
not to pay the bill to Hadduck. In answer to a bill of dis-
covery, he admits that he suspected that J. H. Burch k Co.
wished to get rid of the bill, but for what reason he had no
idea.
The case was tried by the court, and a judgment rendered
for the plaintiff for the amount of the bill, which alone is
questioned by the assignment of error.
In deciding the case it must be only necessary to deter-
mine whether Hadduck was a bona fide purchaser. That is,
whether he gave a valuable consideration for it and received
it without notice of the interest of Gracie. It is insisted on
the part of Russell that it was taken by Hadduck in payment
of a precedent debt due from J. H. Burch to him, which
DECEMBER TERM, 1846. 235
Russell v. Hadduck.
is not a sufficient consideration to protect the indorsee.
That such has been repeatedly held to be the law in New
York is not denied. The case of Coddington v. Bay, 20
Johns. 637, decided in the court of errors in that State, is
the leading case on that subject, and was generally followed
there, in principle, till the decisions of the cases of The
Bank of Salina v. Babcock, 21 Wend. 499, and the Bank
of Sandusky v. Scoville, 24 do. 115, and in a still later case
(Stalker v. McDonald, 6 Hill's (N. Y. ) R. 93,) the court
of errors of that State re-affirm the-doctrine of Coddington
v. Bay. This question was befo.e the Supreme court of the
United States in the case of Swift v. Tyson, 16 Peters, 1,
where all of the cases are reviewed by Mr. Justice Story,
and the rule as laid down in Coddington v. Bay, held not to
be the law. This decision is reviewed and the question
again discussed at great length by Chancellor Wallworth, in
the case of Stalker v. McDonald, above referred to, where
he endeavors to prove that Justice Story had entirely misun-
derstood all of the English cases on the subject, { as well as
those in 21 and 24 Wend.
Admitting the authorities to be conflicting on this^ subject,
as they most undobtedly are, I think the most' sensible and
reasonable rule is, that if a note or bill is taken, before it is
due, absolutely in payment and satisfaction of a precedent
debt and in the usual course of business, that is a sufficient
consideration to protect the holder against any equities
which might exist as beeween any previous parties to the note
or bill. In the case above referred to, reported in 6th Hill,
Chancellor Walworth admits this to be the rule in Maine,
Connecticut and Pennsylvania ; but while admitting this, he
still adheres to the former decision in New York. In the
conclusion of his opinion he says: "Nor do I think that the
settled law of this State is so manifestly wrong as to authorize
this court to overturn its former decision, for the purpose of
conforming it to that of any other tribunal whose decisions
are not of paramount authority." Fortunately we do not
find ourselves thus trammeled, and are disposed to adopt the
rule, which we may infer from the above remark, the Chan-
236 SUPREME COURT.
Russel v. Hadduck.
cellor would have adopted but for the previous adjudications
in that State on the subject.
But so far as the present case is concerned, it comes
strictly within the rule as held in the cases of the 21st and
24th Wend, above referred to. Here J. H. Burch & Co
were Hadduck's bankers, with whom he had deposites ; he
purchased this bill and gave them his check on themselves
for the amount, This was as much paying money for the
bill, as if he had gone through with the idle ceremony of
drawing the money out on his check and immediately paying
it over again to them for this bill. Hadduck was not only a
purchaser of this bill for a valid but for a valuable conside-
ration.
The rule undoubtedly is, that where a party is about to
receive a bill or note, if there are any such suspicious cir-
cumstances accompanying the transaction or within the
knowledge of the party, as would induce a prudent man to
inquire into the title of the holder or the consideration of the
paper, he shall be bound to make such inquiry, or if he neg-
lects to do so, he shall hold the bill or note subject to any
equities which may exist between the previous parties to it.
In other words, he shall act in good faith, and not wilfully
remain ignorant when it was his duty to inquire into the
circumstances and know the facts. But there is no proof
here showing such to have been the case. The evidence
relied upon by the defendant in the court below, is contain-
ed in the answer of Hadduck to a bill of discovery. After
denying, in the most unequivocal and unqualified terms, any
knowledge or suspicion of a want of title in Newberry & Burch
to this bill he says : " This defendant has occasionally pur-
chased bills of exchange or negotiable paper, and he knows
of nothing in connection with this purchase to distinguish it
from other purchases. This defendant admits that he sus-
pected there was some reason why said Newberry & Burch
desired to sell said bill, but what said reason was he does
not known, |but he is informed and believes that it was for
the purpose of enabling them to assert their just and legal
rights, and not for any such purpose as was alleged by said
•DECEMBER TERM, 1846 237
Russell v. Hadduck.
complainant in his said bill of complaint." He admits that he
suspected there was some reason why Newberry & Burch wished
to sell the bill, but what it was he did not know. This is not
sufficient of itself to enable us to say that he was not a bona
fide holder of this bill. The bill was fair upon its face in every
particular. This tranaction took place in Chicago, and we infer
from the whole record that the drawer and the drawees lived in
New York, so that any inquiry of them was absolutely impractic-
able, and the acceptor could not be presumed to know what con-
sideration had moved between the drawer and the drawees, nor
does it appear now that he could have got any information from
Russell on the subje^. I think, therefore, that there can be no
reasonable pretence for charging Hadduck with having been
guilty of wilful negligence, in not having inquired into the con-
sideration passing between the original parties to the bill. The
presumption of law was, that Smith & Co. had paid Grade a
valuable consideration for this bill, and there was nothing in the
case calculated to raise a suspicion in the minds of Hadduck that
such was not the case.
It seems to me also, that this case is very analagous to, if not
precisely identical with the case of The Bank of the Metrop-
olis v. The New England Bank. 1 How. (U. S.) R. 234.
There the Bank of the Metropolis had, for a long time, been in
the habit of corresponding with the Commonwealth Bank.
They mutually remitted for collection such notes or bills as
either might have which were payable in the vicinity of the other,
which, when paid, were credited to the party sending them in the
account current kept by both banks, and regularly transmitted
from the one to the other, and settled upon these principles.
The balance was sometimes on one side and sometimes on the
other. The New England Bank indorsed several notes, bills, &c.
to the Commonwealth Bank, which were by that bank transmit-
ted to the Bank of the Metropolis, in the usual way, for collec-
tion. Before this paper fell due, and while it was still in the
hands of the latter bank, the Commonwealth Bank failed,
being indebted at the time to the Bank of the Metropolis in
238 SUPREME COURT.
Russell v. Hadduck.
the sum of $2900, neither at the time of their transfer had the
Commonwealth Bank any interest in the notes, bills, &c. but the
entire interest in them belonged to the New England Bank, and
they were merely sent to the Bank of the Metropolis for collec-
tion by the Commonwealth Bank, according to their usual prac-
tice. After the failure of the latter bank, the New England
Bank claimed the notes, &c. and the Bank of the Metropolis as-
serted a lien upon them for the balance due from the Common-
wealth Bank ; and this claim was sustained by the supreme
court of the United States. Ch. J. Taney, after alluding to the
general principle that a banker, who has advanced money to an-
other, has a lien on all paper securities in his hands for the
amount of his general balance, remarks, that prima facie the
paper belonged to the Commonwealth Bank, and if an advance
of money had been made on this paper to that bank, the right
to retain for that amount would hardly be disputed. He then
says : " We do not perceive any difference in principle, between
an advance of money and a balance suffered to remain upon the
faith of these mutual dealings. In the one case as well as the
other, credit is given upon the paper deposited or expected to be
transmitted in the usual course of the transactions between the
parties."
Here, then, is the true principle upon which this, as well as
all other bankers' lien must be sustained, if at all. There must
be a credit given upon the securities, either in possession or in
expectancy.
Counsel suppose they can perceive a difference between that case
and this, because Willard, a clerk of Newberry & Burch swore
that they had kept funds in the hands of J. H. Smith & Co. to
draw against. Whether funds were kept in their hands by remit-
ting money directly, by accepting their drafts, or by transmitting
paper for them to collect alone, does not appear. It is most pro-
bable that it was done in the two latter modes at least, as is most
usual with all bankers and brokers, nor does it seem to me to make
any difference in principle. If they placed funds in the hands of
Smith & Co. in either of these modes, it was upon the faith of the
DECEMBER TERM 1846 239
Turney, acini 'r, et al. v. Saunders.
securities already on hand, with the expectation that they
would continue to remit paper for collection as formerly, as
well as upon the expectation that their draft would be honored.
There is no pretence that Newberry & Burch or any of
the other parties to the bill except the drawer and the drawee,
had any knowledge whatever that the bill did not belong to
Smith & Co.
I am of opinion that Newberry & Burch had such a lien upon
this bill that they might have maintained a suit upon it in their
own names and for their own benefit, if they had not transferred
it to Hadduck.
It is clear to my mind that the evidence is entirely insufficient
to prove that the interest of Gracie in this bill as is alleged, but
that would involve an inquiry into a question of fact which is not
necessary for the decision of the case, and I shall therefore not
pursue it.
The judgment of the County Court must be affirmed with
costs.
Judgment affirmed.
John Turney, administrator, &c. et al. plaintiffs in error, v.
Edward E. Saunders, defendant in error.
Error to Jo Daviess.
A. and B. obtained a judgment in a proceeding to enforce a mechanic's lien on
(^'certain ^real estate, the premises were sold to satisfy the same, and they
became the purchasers. Subsequently a motion was made to set aside the
sale, and notice served on A. only. The motion was heard ex parte, and
denied : Held,|that notice to both judgment creditors was indispensable, and
that therefore the Courtjdid not err in denying the motion. (a)
Motion to set aside a sale on execution, in the Jo Daviess
circuit court, made by the plaintiffs in error against the defen-
dants in error, and h eard before the Hon. Thomas C. Browne,
at the March term 1846. The motion was heard ex parte, and
denied. The facts are briefly stated by the court.
(a) Sears vs. Law, 5 Gil. R. 284 ; Dunning vs. Dunning, 37 111. R. 301 ; Blosson Y^
Milwaukee, &c. 1 Wal. U. S. R. 655.
240 SUPREME COURT.
Turney, adm'r, etal. v. Saunders.
Thompson Campbell, and H. 0. Merriman, for the plaintiffs
in error, contended that the judgment having been reversed by
this court, and Saunders and Crook having become the purcha-
sers, the sale should be set aside. Turney v. Saunders, 4 Scam.
534.
E. B. Washburne, for the defendant in error, filed the folio-w-
ing brief :
The parties who are now seeking to set aside this sale were not
the defendants in the suit in which the judgment was rendered.
The case below was Saunders and Crook v. John Turney, admin-
istrator, and Frances G. Campbell, administratrix of William
Campbell and John W. Campbell. The parties here are diff-
erent.
Irregularities in the sale of land on execution will not be cor-
rected, unless the court be called upon to do so by the defend-
ant in the execution. They cannot be disturbed by any one else.
Swiggartv. Harber, 4 Scam. 364.
The defendants in the execution in this case did not move the
court to set aside this sale. Other and different parties made
this application, and in this proceeding the court will not collat-
erally inquire into the regularity of the proceedings connected
with the sale.
The court will not set aside an execution, levy, or sale, unless
the party Avho attacks the excution shall give notice to the oppo-
site party. The reason is, that it is a new proceeding, and the
opposite party should have an opportunity of being heard in a
matter where his interest might be seriously affected. Sears v.
Low, 2 Gillman, 281, and the authorities there cited.
Although the motion was made on the 8th of November, 1844,
it was only served on Saunders, one of the parties, on the fol-
lowing day. Crooks was never served with notice at all, and the
record nowhere shows any appearance by either party. It is ex-
pressly decided in 1 Scam. 535, that notice must be given pre-
vious to the making of the motion.
Crook, although a joint purchaser with Saunders under the
execution, is not before this court, as he was not in the
DECEMBER TERM, 1846. 241
Turney, adm'r, et al. v. Saunders.
court below. Saunders is the only party defendant in error
here. If the sale be set aside and the execution quashed,
the interest of Crook might be seriously prejudiced, without
any knowledge on his part of any such proceeding. The
notice was not sufficient even for Saunders, it not being
served upon him until after the motion was filed. But a
notice to one cannot be considered as notice to both, no
more than the service of a writ upon one of two joint de-
fendants could be a notice to both to appear and answer.
When the plaintiff in the execution is the purchaser, and
has not conveyed the property to a third person, the injured
party may have the sale set aside on motion ; but if he has
conveyed to a third person who is a purchaser, the remedy
is in equity. Day v. Graham, 1 Gilman, 435.
•The bill of exceptions in the case does not show but xhere
had been a conveyance to a third party, which was, in point
of fact, the case, and the very ground upon which the court
refused to grant the motion.
The bill of exceptions has been decided by this court to
be the pleading of the party, presenting the same, and it is to
be taken most strongly against him.
It not appearing by the bill cf exceptions that the plaintiffs
had not transferred their interest to third parties, this court
below decided correctly.
The report of the decision of this case, at a former term
of this court, (4 Scam. 527,) which was introduced, was
not evidence of anything.
The opinion of the court was delivered by
Treat, J. In June, 1843, Saunders and Crook obtained
a judgment against the administrators of William Campbell,
in a proceeding to enforce a mechanic's lien on certain real
estate. On the 31st of August 1843, they purchased the
premises at the sheriff's sale in satisfaction of their judg-
ment. At the October term 1844, the administrators entered
a motion to set aside the sale, and gave Saunders notice of
the motion. At the March term 1846, the motion was heard
GIL. in — 16.
242 SUPREME COURT.
Turuey, adm'r, et al. v. Saunders.
ex parte, and denied by the court. That decision is as-
signed for error.
Without inquiring into the merits of the application, the
decision of the circuit court must be sustained. All of the
parties interested in the disposition of the motion were not
before the court. It was substantially a new proceeding,
of which both of the judgment creditors were entitled to
reasonable notice. They had purchased in the real estate
in full satisfaction of their judgment. The object of the
motion was to defeat the purchase, and deprive them of the
fruits of their recovery. They were as much entitled to
notice of the motion, as of the pendency of a writ of error
to reverse the judgment. Notice in such cases cannot be
dispensed with. An opportunity should be afforded the par-
ties interested in sustaining- a sheriff's sale, of showing that
the execution properly issued, and that the proceedings under
it were valid and regular ; or if irregular, but capable of
amendment, of entering a 'cross motion to correct them See
the case of Sears v. Low, 2 Gilman 281. The notice having
been served on one of the parties only, the circuit court
was not bound to entertain the motion, and committed no
error in denying it.
The judgment of the circuit court is affirmed, with costs,
Judgment affirmed.
K
DECEMBER TERM, 1846. 243
Scott, Adin'r v. Bennett.
Joseph Scott, administrator of Samuel Scott, deceased, im-
pleaded, &c, appellant, v. Joseph Bennett, appellee.
Appeal from St. Clair.
A. being about to purchase of B. a certain tract of land, discovered, upon
examining the title, thatC. had recovered a judgment against B. and anoth-
er individual, for a large amount 'which had been partially paid. He refused
to purchase, unless C. would release the land from the lien of the judgment,
and so informed C. who agreed to release it, and accordingly executed the
following instrument: " This to certify that I, Joseph Scott, administrator
of Samuel Scott, deceased, do relinquish all claim, by virtue of a judgment
obtained against R. M. Lacroix, to a certain tract of land formerly belonging
to Henry Stout, and now belonging to R. M. Lacroix, and about to be tra-
ded to Joseph Bennett. Belleville, February 9. Joseph Scott, administra-
tor." Confiding in C.'s promise to release, A. purchased and paid $2,000 in
cash towards the purchase money, and one half thereof was immediately ap-
plied to the judgment aforesaid. About one thousand dollars remaining due
on said judgment, C. caused an execution to be issued and levied on said
land. On a bill being filed lor an injunction, C. in his answer admitted the
above facts, but alleged that, by an agreement made between the parties at
the time of the execution of the above instrument, A. agreed, as a part of
the consideration of the release, to pay towards said judgment, the sum of
$500, &c, which he had failed to do. It was objected that the iustrument
was not a valid release, being without consideration, a seal and parties, &c.
Held, that the instrument, though not technically a release, not being made
for the benefit of any particular person, and not importing upon its face a
consideration for want of seal, still might, without the slighest encroach
mentupon even a technical rule of law, be averred and proved to have been
made for the benefit of some one, and that there was, in fact., a considera-
tion for its execution.
It is a familiar principle that evidence may be given to explain but not to vary-
add to, or alter a written contract. But if there is doubt and uncertainty,
not about what the substance of the contract is, but as to its particular appli-
cation, it may be explained and properly directed. For instance, a receipt
for the payment of money may be explained. The consideration of a note,
though expressed to be for value received, may be inquired into; and if
made payable to one person, when another was intended, the holder may sue
on it in his real name, alleging the mistake and prove it on trial.
Bill in Chancery for an injunction, &c, in the St. Clair
Circuit Court, brought by the appellee against the appellant
and others, and heard at the May term 1846, before the Hon.
John D. Caton, who subsequently ordered a. decree to be
entered in vacation, making the injunction perpetual. Scott,
one of the defendants, appealed to this Court.
244 SUPREME COURT.
Scott, adm'r, v. Bennett.
The substance of the bill, answers and testimony in the
casa is set out in the opinion of the court
L. Trumbull, for the appellant.
1. This is a bill for an injunction in the nature of a spe-
cific performance, and to entitle the party to such perform-
ance he mnst show a valid contract founded upon a sufficient
consideration. The paper signed by Scott, is not such a
contract. It is not under seal ; it lacks parties and a con-
sideration. Equity will not enforce a voluntary contract,
much less will it supply defects in the execution of such a
contract, and particularly where there is no allegation of
consideration in the bill.
Every bill must contain in itself sufficient matters of fact,
per se, to maintain the case of the plaintiff", and the answer
or proofs cannot be resorted to supply defects in the bill.
Harrison v. Nixon, 9 Peters, 502, 508 ; Boone v Childs, 10
do 209 ; Moore v, Hunter, 1 Gilman, 328 ; 1 Story's Eq. Jur.
§ 433 and note, 2 do. § 706 a, 787, 793 a ; 1 Fomb. Eq. 256 and
258, and notes ; Mintum v. Seymour, 4 Johns. Ch. R. 497 ;
Coleman v. Sarrell, 1 Ves. 52, 54 ; 4 B. &H. Dig. 37, Con-
sideration," § 1 ; Ellison v. Ellison, 6 Vesey, 662 ; Tubman v.
Anderson, 4 Har. & McHen. 357, 362 ; Chandler's Ex'r v.
Hill, 2 Hen. & Muns. 126 ; Black v. Cord, 2 Har. & Gill. 100
1 B. & H. Dig. 81, §37 ; Tate v. Hilbert, 2 Vesey, Jr. 117,
121. The release of Scott is also void for want of mutuality.
Parkhurst v. Van Cortland, 1 Johns. Ch. R. 282 ; Benedict
v. Lynch. lb. 375.
2. If the paper signed by Scott was a valid release of
his lien upon the land, then to avail himself of it, Bennett
must have complied with the conditions upon which it was
executed. That it was executed upon certain conditions,
with which Bennett failed to comply is shown by the answer
of Scott, and the testimony of complainant's own witnesses.
Bates v. Wheeler, 1 Scam. 54 ; 2 Tuck. Com. 464 ; 1 Bac.
Abr. 109.
3. The whole case shows a combination between Lacroix
and Bennett to defraud Scott out of the amount due upon the
DECEMBER TERM, 1846. 245
Scott, adm'r, v. Bennett.
note. What motive could Lacroix have had, in accepting
worthless notes from Bennett in discharge of Bennett's note?
And what motive could Bennett have had in retaining $20,
to pay the expenses of a law suit, and in taking bond with
security from Lacroix to refund the amount paid, if they in-
tended acting honestly with Scott?
He who asks equity must do equity. 4 B. & H. Dig. 44,
§ 40; 1 do. 104, § 53.
4. Lacroix honestly owes Scott, and ought to pay him.
By compelling Bennett to pay Scott according to his agree-
ment, at least the amount due upon the note, this will be
accomplished in part, and injustice done to no one, as Ben-
nett has bond and security to protect him. This will, in fact,
be compelling Lacroix to pay his own debt, as the money
ultimately comes from Lacroix.
Parol evidence of an alteration sti pulated for at the time
of making a contract and upon the faith of which the party
executed, is admissible on the part of the defendant to de-
feat a party seeking the execution of the agreement. Dis-
tinction between the case of a defendant refusing, and a
plaintiff seeking the execution of an agreement under such
circumstances. Clark v. Grant, 14 Vesy, 519.
W. H. Underwood, for the appellee.
1. The Avritten release affords the only evidence of its
conditions and of the terms of said contract. Lane v. Sharp,
3 Scam. 573 ; Francisco v. "Wright, 2 Gilman, 691 ; Crosier
v. Acer, 7 Paige, 141 ; Broadwell v. Broadwell, 1 Gilman,
605, 607.
2. Scott should resort first to the property owned by
Lacroix after the sale to Bennett, before he resorts to the
property of Bennett. Clowes v. Dickenson, 5 Johns. Ch. R.
240 ; Fonblanque's Eq. 514, 515.
3. A court of Equity will not relieve a party on account
of a mistake in a matter of law. Lyons v. Richmond, 2
Johns. Ch. R. 60 ; Hunt v. Rousmaniere's Adm'r, 1 Peters,
12, 13, 14 ; Broadwell vs Broadwell 1 Gil R. 610.
4. An answer on oath is evidence so far as it is respon-
(a) Broadwell vs.* BroadweU, 1 Gil R. 610.
246 SUPREME COURT.
Scott, adm'r, v. Bennett.
sive to the allegations in the bill, but matter set up in
avoidance must be proved by defendant. Hart v. Ten Eyck,
2 Johns. Ch. R. 87-90, and note.(a)
5. It is said, that to make the release valid, it should be such
as to enable either party to maintain a suit upon it. This rule
is only applicable to contracts, and not to receipts or genera'
releases.
6. It is said that the release was given without any con-
sideration, and is a nudum pactum. The release was the
inducement for Bennett to purchase the land, and Scott
actually received part of the purchase money. The case
cited by appellee's counsel, from 4 Johns. Ch. R. was with-
out any consideration proved, but one was alleged. The case
in 2 Hen. & Munf. 499, was where an indemnification bond
was given to a person for having become security for his
son ; and the case in 4 Har. & Johns. 357, where the sale
had been made before the naked agreement.
The Opinion of the court was delivered by
Purple, J. * Joseph Bennett, the appellee, filed his bill in
Chancery in the St. Clair circuit court against Joseph Scott,
administrator of Samuel Scott, deceased, Rene M. Lacroix,
William R. Scott and Thomas Ward, alleging that in
January, A. D. 1841, he was about purchasing of Lacroix
a tract of land in said county, describing it. That upon ex-
amining the title he found that the appellant, as administrator
of Samuel Scott, deceased, had a lien upon the same by
virtue of a judgment in his favor, rendered in the St. Clair
circuit court on the 20th August, A. D. 1840, against Rene
M. Lacroix and William R. Scott, for the sum of $2533.01,
upon which $578.75 had been paid. That he refused to pur-
chase the said land unless Scott would release it from the
lien of said judgment. That about the 8th of January, 1841,
in company with Lacroix, he called upon appellant and in-
*Koener, J. having been ofcounsel in this case, tookro partinits decision-
Lodkwood, J. did not hear the argument, &c.
(«) 15 111. R. 94.
DECEMBER TERM 1846. 247
Scott, adm'r, v. Bennett.
formed him he was about to purchase the land, bur was
unwilling to do so unless the lien aforesaid could be removed.
That beeore he consented to purchase, Scott agreed to release
the land from said lien and executed to appellee a writing in
the following words and figures :
" This is to certify, that I, Joseph Scott, administrator of
Samuel Scott, deceased, do relinquish all claim by virtue of
a judgment obtained against R. M. Larcroix, to a certain tract
of land formerly belonging to Henry Stout, and now belonging
to R. M. Lacroix, and about to be traded to Joseph Bennett.
Bellville, February 9th, 1841.
Joseph Scott, administrator."
That the tract of land in the said instrument of writing
described, as formerly belonging to Henry Stout, is the same
described in the bill, and which he was about to purchase of
Lacroix. That confiding in the appellant's promises to release
the land from the incumbrance of the judgment, he purchased
it of Larcroix for $2500 00, paying two thousand dollars down,
one thousand of which was paid by Lacroix to Scott upon the
judgment before referred to at the time. That Lacroix deeded
the land to him on the 9th of February, 1841, and that he entered
into the possession of the same. That since the purchase, Lacroix
has paid to Scott the amount of the judgment against him and
William R. Scott, except about one thousand dollars. That
since his purchase of Lacroix, Lacroix had been the owner of
real estate in Belleville, upon which said judgment was a lien
worth the sum of $500 00, and that, in like manner, William
R. Scott had had title to real estate in said town worth $75 00.
That appellant had caused execution to be issued upon the
judgment against said Rene M. Lacroix and William R. Scott,
and levied upon the land so by him purchased of the said Lacroix,
and advertised the same for sale.
The bill concludes with a prayer for a perpetual injunction
restraining the sale, and for general relief.
Joseph Scott answers and admits, that Bennett was about to
purchase the land at the time and in the manner stated in
his bill, the existence of the judgment and the lien, and the
248 SUPREME COURT.
Scott, adni'r, v. Bennett.
payment of 568 25 upon the judgment as alleged. That
Bennett and Lacroix called on him about the 8th of Feb-
ruary, 1841, and Lacroix informed him that Bennett was
about purchasing the land, but was unwilling to do so unless
he could have assurance that the judgment lien would be
released. That Lacroix stated that Bennett was to pay him
$2500, $2000 of which was to be paid down, $1000 of which
Lacroix agreed to pay Scott on said judgment. That it was
understood between the parties that Scott was to have exe-
cution issued on the judgment, and levied on William R.
Scott's interest in his father's estate of which he died siezed,
known as the "homestead ;" and that Lacroix agreed that,
with the other $1000, he would purchase William R. Scott's
interest in the "homestead" on the sale ; which interest it
was estimated would sell for about $400, and satisfy thereby
so much of the said judgment. That Lacroix failed to pay
the $1000 on the judgment, and only paid $568 25, and pur-
chased William R. Scott's interest in the homestead with
the balance of the $1000, and kept the other $1000 himself.
That Lacroix stated that Bennett was to give his note for
the balance of the purchase money, $500, to Lacroix, to
be paid 1st October, 1841, with ten per cent, interest, which
Lacroix agreed to place in his hands for collection, and when
collected to be applied on the judgment ; and that Bennett
agreed also to pay the note to him (Scott,) to be applied on
the judgment. That in consideration of these agreements,
he executed the writing in the bill set out. That the next
day, Bennett and Lacroix called on him, and Lacroix stated
that he owed T. Harrison & Co. $100, and requested that he
would let Bennett pay it to them in wood, and take Bennett's
note for $400. That he assented, and the same Ayas done ;
the note of $400 being made payable to Lacroix and due 1st
October, 1841. That this note was placed in his [Scott's]
hands for collection, and to be applied ,when collected on
Scott's judgment, and that Bennett agreed to pay the same
to him when due, for the purposes aforesaid. That after the
note became due, Bennett paid him $100 on it. That after-
wards, Bennett fraudulently paid the balance of the note to
DECEMBER TERM, 1846. 249
Scott, adm'r v. Bennett.
Lacroix, knowing that the same remained under the con-
tract in his, (Scott's,) hands, and obtained from Lacroix
the receipt which he, ( Scott, ) had given Lacroix for the
note. That he presented the receipt and demanded the
note, which he, (Scott, ) gave up under a mistaken notion of
his rights. That the residue of the note has never been paid
to him. He admits that the land mentioned in the writing is
the same which Bennett was about purchasing of Lacroix.
That he did purchase the same and pay down $2000, and
Lacroix executed the deed as stated in the bill. Denies that
the judgment is paid, except $1000; says there is still about
$1300 due. That he does not know whether Lacroix and
William R. Scott has title to real estate in Belleville
as charged in the bill. He admits the execution and levy,
as stated in the bill, but denies that Bennett ever requested
him not to levy on the land in question. Avers that Ben-
nett and Lacroix had both failed to comply with their agree-
ment, and claims a legal right to proceed with his exe-
cution.
In an amended answer subsequently filed, Scott further
states, that since filing his answer he has ascertained, that
since the rendition of the judgment in his favor aforesaid,
William R. Scott has not had title to real estate in Belle-
ville, and that he has been informed and believes, that
Lacroix had not title to any real estate in Belleville, upon
which his judgment was a lien. That Lacroix purchased
his after the sale made by him to Bennett, and sold the same
in about three months to Minerva Orr, as whose property
the same had since been sold on execution; and that he
knows of no property, real or personal, of Lacroix or Wil-
liam R. Scott, subject to execution on said judgment ;
believes them both insolvent, and that he will lose his judg
ment unless he can make the same out of the lands levied
upon. He again repeats, that Bennett expressly agreed to
pay to him the balance of the purchase money of said land
$500.00, and that in consideration of the agreement only, he
executed the release, or writing; and that the reason, why
the note of $ 500.00 was not made payable to him was that
250 SUPREME COURT.
Scott, admrr v. Bennett.
he wished the release of judgment to depend upon the
payment of the note, and he was unwilling to take Bennett's
note without security when he had a lien on the land. That
since filing his first answer, he has been informed and be-
lieves, that Bennett did not pay Lacroix the full amount of
the note of $400, but received about $20 to defray the
expense of a suit of which he expected with Scott on account
of having paid the note to Lacroix. That what was paid
was in notes upon third persons, and that he, (Bennett,)took
a bond with security from Lacroix, as an indemnity against
the payment of the note to him.
Accompanying this amended answer, Scott filed interrogato-
ries to be answered by Bennett, requiring him to explain the man-
ner in which the balance of the $400 note had been paid,
and to disclose whether the same had not been discharged in notes
upon third persons ; whether a portion had not been retained,
and for what purpose ; and whether he had not taken a bond
with security, as an indemnity against damages which he might
sustain on account of the payment to him of said note.
William R. Scott answers generally, that he has little know-
ledge of the matters in controversy ; he admits the existence of
the judgment against Lacroix and himself, but denies, that since
that time, he has had title to any real estate, as is therein
stated.
The answer of R. M. Lacroix substantially admits all the ma-
terial statements in the bill.
Bennett answers Scott's interrogatories, and states that
he paid $330 of the balance due on the $400 note in notes,
and overpaid the note in wood, and in a note paid to one
John Wilson for $4.00, and an order to John Sargeant for
$7.00, and that the excess was paid back by way of a set-off
in a suit between him and S. B. Chandler as assignee of La-
croix. That the amount of notes paid was a little short of
his note, about $20, as he thinks. That he did take an in-
demnifying bond from Lacroix, with S. B. Chandler as secu-
rity, when he paid the note ; a copy of the bond is set out.
He further states that Lacroix called on him for the pay on
DECEMBER TERM, 1846. 251
Scott, adm'r, v. Bennett.
the note ; showed him Scott's receipt for the same, which
receipt is set out in Lacroix's answer, as follows: "Re-
ceived of Re M. Lacroix, for collection, one note for three
hundred and fifty three dollars, thirty three cents, payable
the first day of October last. January 15, 1842. Joseph
Scott." That Lacroix threatened to sue him on the note,
and told him that he wanted the pay upon it to give to Chand-
ler, to whom he was indebted. That from these statements,
and the production of the receipt, to avoid being sued by
Lacroix, and believing that the note still belonged, to him
he paid it, taking the indemnifying bond out of: abundant
caution.
The evidence in the case consists of the depositions of
Henry Smith and Rene M. Lacroix, one of the defendants in
the Court below.
The substance of Smith's testimony is, that about the
month of October, 1843, Scott informed him that he had got
into a difficulty about a release, as he, (witness,) thought
about a judgment on some land, in consequence of the con-
fidence he had reposed in Bennett. That it was talked and
understood that the money which was coming from Bennett
was to apply on Scott's judgment against Lacroix. That
they offered to give a note payable to Scott, and he refused
to take it in that way, for the reason that if he did so, he
would have to credit that amount upon the judgment. That
afterwards Lacroix offered to indorse the note and others
over to him, (Scott) and that he would not take them then.
Witness thought that Scott stated that the reason why he
released the judgment was that he thought he could make
the balance out of William Scott and Lacroix some other
way. That he had not the "scrape" of a pen against Bennett ;
that the note was payable to Lacroix.
On his cross- examination, he stated further, that Scott at
the same time said that Lacroix had promised the balance
of the money to apply on the judgment ; that this was the
reason he gave the release. That Bennett and Lacroix were
together, and Lacroix told Bennett to pay the money
to him, (Scott,) and that he promised, when paid, to credit
252 SUPREME COURT.
Scott, adm'r, v. Bennett.
it on the judgment. That the note referred to was the note
Bennett gave for the balance of the purchase money of the
land, for $500 That he understood from both paties that
this note was afterwards taken up and two others given.
The substance of Lacroix's testimony is, that when he
Was about to sell the land to Bennett, he proposed to Scott
that he would pay him $1,000 of the purchase money and give
him Bennett's note for $500 more, retaining one half the money
himself. That he would also buy William R. Scott's interest
with part of the money. That Scott, at the time, had a judgment
which was a lien upon the land. Bennett agreed to pay
$2,500, $2,000 in cash and his note for the residue, if
Scott would release the lien of his judgment ; that this
being agreed upon, he and Bennett closed the contract.
Bennett paid the money, and gave his note to Lacroix
for the balance. The deed was executed, and Scott took
$1,030 of the money and Bennett's note, and gave a receipt
releasing all claims against the land, and gave to him,
(Lacroix, )a receipt for the note. This witness further stated
as follows : "I must here remark that six hundred and about
thirty dollars of this money received by said Scott, was re-
ceived as redemption money on a house and lot Mr. Scott
previously purchased, sold to satisfy said judgment, the prop'
erty being mine and redeemed in my own name, and I getting
a receipt for about $360, making in all about one thousand
dollars Mr. Scott received in pay of that judgment."
That the $500 note was due eight months after date.
Scott kept it fifteen or sixteen months, collecting in that time
about $100. That a few days after the trade, Scott
consented that Bennett should pay T . Harrison & Co. $100
of this note in wood, and gave a new note of $100 for Scott's
benefit ; that he intended Bennett should pay this note to
Scott ; that Scott had ample time to collect it, and that he
should not have thought of collecting it, if Scott would have
given him credit for it. That he did not choose to stand
between Bennett and Scott ; that Scott would have held him
responsible, if he had not collected the note from Bennett.
That he believed that the property he then had subject to
DECEMBER TERM, 1846. 253
Scott, adm'r, v. Bennett.
the lein of the Scott judgment, and what he afterwards ac-
quired, was more than sufficient to pay the balance of the
judgment, and he did not believe Bennett would have bought
the land unless Scott had released the lien of the judg-
ment. That the $400 note was not assigned to Scott ;
that Scott received it for collection. That he considered
that he had parted with his control over the note, and in-
tended that Bennett should pay it to Scott. That he believed
Bennett, on paying the note to him, ( Lacroix, ) got it from
Scott on presenting the receipt which witness had held for
the note. That he proposed to Scott to credit the note on
the judgment, and believed that Scott refused.
On cross-examination, he stated that he believed that the
release was given to Bennett, and understood that one of
the conditions upon which the release was given was, tha^
Bennett should pay the $500 note to Scott. That he, ( wit-
ness, ) received notes on other persons for the balance of the
$400 note. That about $20 was retained by Bennett, be-
cause he thought he might be put to trouble by Scott. That
it was one of the conditions, at the time of the trade, that
Bennett was to pay the $500 note to Scott, and he was to
indorse the same upon the judgment. That he owned lots
No's 272 and 273 about three months, from March to June,
1841, and sold the same for $500.
On re-examination, he stated that he did not recollect
hearing Bennett promise positively to pay the note to Scott,
but he so undestood it : that is, that he would pay to Scott
as collecting it for his, ( witness' ) use. That all he knows
relative to the manner in which Bennett obtained the note
from Scott was derived from what Bennett told him.
Upon this state of facts, the circuit court entered a de-
cree perpetually enjoining Scott from proceeding to enforce
the collection of his judgment by execution against the land
upon which the said execution had been levied, as referred
to and described in the bill of the complainant in that court.
The counsel for the appellant now contends, that the ap-
pellee's bill, upon its face, shows that he is not entitled to the
relief he seeks. That it is in the nature of a bill for a spe-
cific performance, and that the appellee must set forth and
254 SUPREME COURT.
Scott, adm'r v. Bennett.
show a valid contract founded upon a sufficient consider-
ation. That the paper signed by Scott is not such a con-
tract. That it is not under seal, and lacks parties and a consid-
eration, and that there is no allegation of consideration in the
bill ; and that in such cases equity will not supply defect or afford
relief.
If all these premises in point of fact were true, the conclusions
drawn from them would follow as a matter of necessity. A portion
of the premises are correctly stated. The writing signed by Scott
is not a techincal release. It is not made for the benefit of any
particular person by name. It is not under seal, and does not
therefore, upon its face, import a consideration. But does it
follow as a consequence that it may not be averred and proved
that it was made for the benefit of some one, and that there was
in fact a consideration ? We think this may be done without the
slightest encroachment upon even a technical rule of law.
It is a familiar principle, that you may give evidence to
explain, but not to vary, add to, or alter a written contract.
This is a general rule, (a) Where parties have mada an agree-
ment in writting, courts cannot alter, change, add to, or
make a new one for them by parol. But if there is doubt
and uncertainty, not about what the substance of the con-
tract is, but as to its particular application it may be ex-
plained and properly directed. A receipt 'for the payment
of money may be explained. The consideration of a new
note, although expressed to be for value received, may be
inquired into ; if made payable to one person, when another
was intended, the holder may sue on it in his real name,
alleging the mistake and prove it on the trial. (/>) So in the
present case. No rule of law is violated in allowing Bennett
to allege and show that this release or writing was intended
for his benefit, and that it was given for a consideration, (c)
Such evidence does not change the nature of the contract.
It only shows the reason of execution, and points out its
use and application. But upon the case made in his bill, the
appellee would have been entitled to relief, even if the writ-
ten agreement to release the land from the judgment lien had
been omitted to be stated. Lacroix and Bennett called on
(a) Pennv vs. Graves, 12 ni. R. 289, and notes .
(6) Post 637- 641.
(e) Benjamin vs. McConnell, 4 Gil. R. 536 ; 111. C. R. Co. vs. Read, 37 111. R, 4S4.
DECEMBER TERM, 1846. 255
Scott, adm'r, v. Bennett.
Scott and informed him of the pending negotiation for the
purchase of the land by Bennett, and, of his refusal to pur-
chase unless the lien of the judgment could be removed.
Scott agreed to release the land from the incumbrance,
thereby inducing Bennett to part with his money. This was
a sufficient consideration to make the contract binding, an
agreement which a court of Equity must enforce. If it had
been of no benefit to Scott, it was a disadvantage to Ben-
nett, and this is all the law requires to constitute a consid-
eration for a contract. It would be fraud on the part of
Scott afterwards to attempt to enforce his lien, which in a
court of law or equity could not be tolerated. I speak now
only of the^ case made by the bill ; and we are of opinion, that
whether the written agreement be in or out of it, the appellee,
upon the facts presented would be entitled to the relief he
asks. The authorities cited upon this point have been ex-
amined. They are admitted to be law, and applicable to
such a case as the counsel seems to have supposed this bill
presented. But if we are correct in the views which we
have given the subject, they have no bearing on the present
question.
It is further contended by the counsel for the appellant,
that if the release is a valid one and obligatory upon him,
that it was made upon conditions upon the part of the ap-
pellee to be performed, with which he has not complied, and
that this is shown by the answer of the appellant and the
testimony of the witnesses of the appellee. The bill alleges
that the conditions of the release where the purchase of the
land by the appellee from Lacroix, and the payment of the
money. It goes no farther. The answer admits that these
were some of them, but avers that there was another, the
agreement on the part of the appellee to pay the $500 note
to the appellant ; and 'that this condition was not performed.
Whether this portion of the answer is strictly responsive to
the bill, and as such, evidence in favor of the appellant, is a
question of some doubt. We are inclined to the opinion. that
it is not. In the light in which we look upon this portion of
the case, it is not material to decide this point.
Independent of the answer, we think that Bennett's an-
256 SUPREME COURT.
Scott, adrn'r, v. Bennett.
swer to the interrogatories of the appellant, and the testi-
mony of both the witnesses, leave little room to doubt that
the contract was, that this note was to be paid to the appel-
lant, and not to Lacrios, and that this agreement constituted
a portion of the consideration upon which he agreed to re-
lease his lien upon the land.
All parties appear to have so understood it. The note, though
payable to Lacroix, was given to Scott, and by him receipted
for collection. The day after its date, Lacroix solicits Scott
to permit Bennett to pay $100 of it to T. Harrison & Co. for
his, (Lacriox's,) accommodation. Lacroix says distinctly, that
it was the understanding between him and Scott, that Bennett
was to pay the note to Scott, and when paid, Scott was to en-
dorse it on his judgment. When Bennett paid the note, it was
in Scott's hands, and he took an indemnity against any claim
Scott might have against him on account thereof : and Lacriox
in his testimony says that $20 was witheld by Bennett to de-
fray the expenses of an anticipated suit with Scott. This is
denied by Bennett in his answer to Scott's interrogatories.
These are the principal circumstances attending the transaction
of the payment of this note. In our judgment they show be-
yond any reasonable doubt, that the contract was as is contend-
ed by the appellant, and the appellee well understood that he
was not acting in entire good faith in paying the note to
Lacroix.
It is said that Scott voluntarily gave up the note to Ben-
nett upon the presentation of his receipt which had been
given for the same to Lacroix. Scott says he gave it up in
ignorance of his rights. Upon this question there really is
no evidence. Lacroix states nothing except what Bennett
told him. It is of little consequence in what manner the
possession was surrendered or obtained, unless from some
circumstances we can reasonably infer that Scott assented
to the payment having been made to Lacroix. There is
nothing to satisfy us that such assent was given. On the
contrary the facts appearing, and the conduct of the parties
strongly induce the belief that it was witheld. It was not
long after this transaction occurred, (the record does not
show the time precisely.) that Scott re-asserted his right to
DECEMBER TERM 1846. 257
Scott, adm'r, v. Bennett.
enforce his judgment lien upon the land. This was done
by causing execution to be issued on the judgment on the
31st day of March, 1843.
Again, if the contract was as we have supposed is shown
in evidence, the bare giving up the note by Scott to Bennett,
after its payment to Lacroix, instead of raising the presump-
tion that he thereby ratified and approved the act, and es-
pecially when taken in connection with his subsequent
conduct in issuing execution shortly afterwards upon his
judgment, rather tends to prove the contrary. At all events,
after a failure on the part of Bennett to fulfil the stipulations
of the agreement, Scott was under no obligation to keep the
note, and attempt by legal process to collect the same from
Bennett, and would have been justified in issuing his execu-
tion for the collection, out of the land, of the sum due him
upon the note, thus improperly, and as we must think, in
violation of the contract, paid to Lacroix. To this extent we
are of opinion, that the lien of the judgment ought still to
operate. The contract has been in part executed in good
faith. For a violation or departure in one particular we
should not rescind it. We could not do so with justice to
either party. But we think good conscience, equity and
fair dealing, demand that we should permit the appellant to
collect on execution to be issued on his judgment the sum
due, as the balance of the five hundred dollar note, and
interest to this time.
The decree of the Circuit Court of St. Clair county is re-
versed, and a decree entered in this court that the appellee,
Joseph Bennett, pay to the appellant, Joseph Scott, adminis-
trator of Samuel Scott, deceased, the sum of three hundred
dollars, and six per cent, per annum interest thereon, from
the 8th day of June, A, D. 1842, on or before the 1st day of
August, A. D. 1847 ; and that in default of such payment,
that the said appellant shall have execution upon the judg-
ment in the bill of complaint in this case mentioned, to be
levied upon the lands therein described, for the collection of
the said sum of three hundred dollars and interest as afore-
said. And it is further ordered and decreed, that upon the
GILL. — III — 17.
258 SUPREME COURT.
Snow v. Baker.
payment or collection of the said sum of three hundred dol-
lars and interest as aforesaid by the said appellee, that the
said appellant do make, execute and deliver to the said
appellee a good and sufficient release, under seal, releasing
and discharging said land from the lien of said judgment ;
and that the said appellant be thereafter forever perpetually
enjoined and restrained from collecting any of the remaining
portion of the said judgment out of the lands in the said bill
described, and therein stated and mentioned as having been
purchased by the said appellee of the said Rene M. Lacroix,
and that each party pay one half the costs of this suit, both
in this court and the court below.
Decree reversed.
Loring Snow, appellant, v. William Baker, appell* \
Appeal from Winnebago.
A. assigned to B. and B. to C. the amount of a judgment recovered before
justice of the peace, from which an appeal was taken, when judgment was
rendered for the defendant. The assignment was as follows : " For a valua-
ble consideration, I hereby assign the within named judgment (which was
described in another assignment on the same paper,) to Loring Snow, and
guarantee the collection of the same, if well attended to. Dec. 4, 1838.
(signed) William Baker ; " Held, that the terms " well attended to " clear-
ly referred to the collection of the judgment, and not to the sustaining ot it
upon the contingency of an appeal.
This action was originally brought in a justice's court to
recover of the defendant the amount of a justice's judg-
ment in favor of W. P. & H. Hunt, against Jabez Giddings,
which judgment had been assigned by Hunt to the defendant,
and by him to the plaintiff.
Judgment was rendered against the defendant by the jus-
tice of the peace, from which judgment the defendant ap-
pealed to the Stephenson Circuit Court, and took a change
of venue to the Winnebago Circuit Court, where the cause
was tried at the April term 1844, before the Hon. Thomas
C. Browne and a jury, who found for the defendant. A new
trial was granted, and the cause was again tried at the April
DECEMBER TERM, 1846. 2o9
Snow v. Baker.
term 1845, before a jury who rendered a verdict for the
defendant.
The bill of exceptions contained all the evidence and ex-
ceptions taken at the trial.
It is proved on the part of the plaintiff, that Giddings,
the defendant in the judgment which was assigned by de-
fendant to plaintiff, took an appeal to the Jo Daviess circuit
court, where the judgment was reversed.
It appeared from the record of that cause, that the judg-
ment against Giddings was bad, for the reason that the justice
had no jurisdiction of the cause, because the capais was
issued by him without an affidavit, because there was no
service of process on Giddings, and because there was a
discontinuance of the cause, and no subsequent proceedings
had to give him jurisdiction.
Hunt employed counsel to attend to the suit against Gid-
dings in the Jo Daviess circuit court.
The plaintiff proved that he paid a consideration for the
judgment, and Hunt had assigned the original claim, on which
the judgment against Giddings was founded, to the defendant.
The plaintiff on the last trial, asked the court to instruct
the jury that the defendant's guaranty of collection of the
judgment against Giddings, if well attended to, was a guar-
anty that the judgment was a valid judgment, and that the
terms " if well attended to" in the assignment related to the
dilligence to be used in the process of collection, and not to
the sustaining of the judgment in another court, which in-
struction the court refused to give, and the plaintiff excepted.
The plaintiff moved for a new trial, which was refused by
the court, and the plaintiff excepted.
The plaintiff brought the case into this court by appeal,
and assigned for error, that the court erred,
1st. In refusing to give the instructions asked by plaintiff ;
and
2d. In overruling the motion for a new trial.
J. Marsh, for the appellant.
Anson S. Miller, and M. Y, Johnson, for the appellee.
260 SUPREME COURT.
Snow v. Baker.
r
The opinion of the court was delivered by
Wilson, C. J. This action is brought to recover back
money paid for a judgment on a justice's docket, which was
afterwards appealed to and reversed in the circuit court.
The judgment was assigned by the appellee to the appellant
in these words : " For a valuable consideration, I hereby
assign the within named judgment ( which was described in
another assignment on the same paper ) to Loring Snow, and
guarantee the collection of the same, if well attended to, in
December 4th, 1838:" and signed by W. Baker, the appellee.
Upon the trial of the cause, the appellant asked the court
to instruct the jury that the appellee's guaranty of the judg-
ment, if well attended to, was a guaranty that the judgment
was a valid one, and that the terms "well attended to," in
the assignment, relate to the diligence to be used in the pro-
cess of collection, and not to the sustaining of the judgment
in another court. This instruction the court refused to
give, and a verdict and judgment was rendered against the
appellants. The refusal of this instruction is relied on for
the reversal of this cause, and we think it sufficient. The
sale of the judgment, like the sale of an article of personal
property, implies a warranty of title to the thing sold, and
entitles the purchaser to recover back the price paid for it,
if the title proves defective, (a) In this case, the reversal of the
judgment by the circuit court destroyed all title and interest
in it, as the justice's judgment was reversed for want of
jurisdiction, no attention on the part of the appellant to
the prosecution of the case in the circuit court could have
produced a different result. But we do not think that the
terms of the assignment imposed upon him any such atten-
tion. The terms "well attended to," in the assignment,
clearly refer to the collection of the judgment, and not to
the sustaining of it upon the contingency of an appeal. The
instructions ought, therefore, to have been given.
The judgment is reversed and the case remanded.
Judgment reversed.
(a) Wilson vs. Van Winkle, 2 Gil. R. 684 ; Misner vs Granger, 4 Gil. R. 74 ; Fowles
vs. Vttllandigham, 43111. R. 269 ; Hnrcl vs. Slaten, 43 111. K. 348.
DECEMBER TERM, 1846. 261
Garrett v. Stevenson etal.
Augustus 0. Garrett, appellant v. Andrew Stevenson
et al., appellees.
Appeal from Tazewell.
A contract for mechanic's labor was made on the 3d day of March, A. D. 1840,
the labor commenced and continued until July 1, 1840. A petition for
a lien was filed October 27, 1841, in the Peoria circuit court, from which
the venue was changed to the Tazewell circuit court, and there tried at the
April term 1846, when a verdict was rendered for the petitioners. The
•' Act to provide for securing to mechanics' and others, liens for the value of
labor and materials, " by virtue of the 19th section of the 3d Article of the
Constitution, became a law, December 10, 1839 : Held, that, by the terms of
this law in force when the contract was made, no limitation in point of time
is fixed upon the right of the creditor to enforce the lien created by it, as
against the debtor merely ; and, therefore, that the right of the petitioners
was in no wise affected by their delay to institute legal proceedings to enforce
their lien.
An answer to a petition for a mechanic's lien, so tar as the same is responsive
thereto, is proper evidence for the consideration of the jury.
A decree on a petition for a mechanic's lieu can only affect whatever legal and
equitable interest the defendant has in the premises, when such interest is
less than a fee simple estate.
Petition for a mechanic's lien, filed by the appellees
against the appellant, in the Peoria circuit court, on the
27th day of October, A. D. 1841, where the cause was
brought to an issue, but the venue was changed to Tazewell
county in October, 1844, and, after being continued from
term to term, was finally determined at the April term 1846,
of the circuit court in said county, the Hon. Samuel H.
Treat presiding. The issue was submitted by the court to
a jury, a special verdict returned in favor of the peti-
tioners for $2,595.20, and the court rendered a judgment
thereon, less $515.76, against the said Garrett.
A. Lincoln, and H. 0. Merriman, for the appellant.
O. Peters, and L. B. Knowlton, for the appellees.
The opinion of the court was delivered by
Thomas, J. This suit was originally commenced in the
circuit court of Peoria county in October, 1841, by Ste-
262 SUPREME COURT.
Garrett v. Stevenson et al.
venson & Wardwell against A. 0. Garrett to enforce a
mechanic's lien, and afterwards taken by change of venue
into the- Tazewell circuit court, and there disposed of by
the rendition of a decree against the said defendant. From
thence it comes by appeal into this court.
In dragging its slow length along, from its inception to its
termination, it necessarily accumulated much matter by the
way. Accordingly, its history is exhibited to us, swollen
into a very voluminous record, but in tracing that History through
all its various stages, it is found to present no question for
our adjudication, growing out of any proceeding intermediate,
between the commencement of the suit and the trial resulting in
the decree now complained of. The appellant denies the right
of his adversaries, at the time when they commenced their ac-
tion, and under the circumstances of the case,' to the remedy
sought for by it, and insists, if overruled in that respect, that in
the proceedings of the circuit court of Tazewell county, on the
trial of the cause, and in the rendition of the decree, there will
be found such error as to require the reversal of that decree.
This denial by the appellant of the appellees' right to the en-
forcement of a specific lien upon the premises described in the
petition, involves no controversy as to matters of fact. But, as-
suming the law, entitled "An Act for the benefit of mechanics,"
approved February 22d, 1833, to have been in force when the
contract was made, under which the lien is claimed, he contends
that they cannot now avail themselves of the benefit of such
lien, because the suit for that purpose was not commenced within
three months from the time that payment should have been made
by virtue of said contract, as required by the second section of
the law referred to, in cases arising under its provisions Gale's
Stat. 461.
But this is an erroneous view of the subject. The law
relied upon as governing and controlling the rights and obliga-
gations of the parties, under their contract, was not in ex-
istence on the 3d of March, 1840, when that contract was
made. It had then been repealed by the law, entitled "An
Act to provide for securing to mechanics and others, liens
DECEMBER TERM, 1846. 263
Garrett v. Stevenson et al.
for the value of labor and materials, found on page 147 of
the Laws of 1839-40.
That law was passed by the General Assembly at their
session of 1838-9, and had it received the necessary Consti-
tutional sanction, would, by its own provision have gone into
effect on the first day of May, 1839. But it did not receive
such sanction, and consequently its operation was for a time
suspended. From the certificate of the Secretary of State
attached to the law, it appears that ten days did not inter-
vene between the time when the bill was laid before the
Council of Revision, and the adjournment of the General
Assembly ; and that the said bill not having been returned
with the objections of the Council on the first day of the next
ensuing session of the General Assembly, it had then, ( on the
10th day of December, 1839, the second day of the last men-
tioned session of the General Assembly, ) become a law. Such
was the Constitutional result. State Const. Art. III. § 19.
Therefore, as by the terms of this law, thus shown to have
been in force when the contract out of which this suit origi-
nated was made, no limitation in point of time is fixed upon
the right of the creditor to enforce the lien created by it as
against his debtor merely, it follows, that the right of the
petitioners in this case to the enforcement of the lien claim-
ed by them was in no wise affected by the delay on their part, in
the institution of their proceedings for that purpose.
It may here be remarked, that between this view of the
subject and the decision of this court in Turney v. Saunders,
4 Scam. 527, there is no conflict, as assumed by the counsel
for the appellant in argument. The question settled in this
case did not arise in that. It is there only determined, that
where work was commenced under a contract entered into
before the law of 1839 took effect, but not completed until
afterwards, neither' the lien, created thereby under the ope-
ration of the law of 1833, in force when the contract was
made, nor the right to enforce it, was in any wise affected
by the repeal of said last mentioned law. But as the right
of action was incohateand imperfect when the law of '33
264 SUPREME COURT.
Garrett v. Stevenson et al.
was superseded by that of '39, they hold in recognition of a
well established principle, that while the right is conferred by the
former, and exists subject to all the limitations and restrictions
imposed upon it thereby, the remedy must of necessity, be sought
under the latter. The record in that case shows, that the work,
commenced in October, 1839, was not completed until August,
1841, and that the suit was commenced in October 1841,
and within the time prescribed by the law of 1833. Had
the fact in that respect been otherwise, the principle above refer-
red to would have required a different result. The limitation up-
on the "right" of the plaintiff to sue, and the "liability" of the
defendant to be sued, imposed by the law creating such " right
and liability, " was, on the repeal of that law, continued as the
inseparable concomitant of such " right and liability. " By its
disregard, they would be materially affected, beneficially to the
plaintiff, and to the defendants prejudice. This, the repealing
law provided should not be done. Laws 1839-40, 150, §28.
Having thus shown that the appellees' right to the remedy
sought by the lapse of time, I now proceed to inquire, whether
there was any error in the proceedings of the court, allowing
him such remedy, either in the extent, or manner of its allow-
ance.
The appellees filed their petition and amended petition, against
the appellant and his wife, Mary G. Garrett, seeking to enforce
a mechanic's lien upon certain lots in the town of Proria, for
materials furnished, and work done by them, as they alleged in
and about the erection of a house on said lots, under a contract
with said appellant.
The appellant and his co-defendant answered said petition
and amended petition, denying all of the material allegations
therein contained, except as to the execution of the contract
aforesaid, and the former ( the appellant, ) in his answer
claimed to have made large payments to the appellees under
said contract ; and to be entitled to set off against their de-
mands, a large sum of money for damages sustained by him,
DECEMBER TERM 1846. 265
Garrett v. Stevenson et al.
as he alleged, by reason of the unskilful and unworkmanlike
manner in -which the appellees had done their work, &c. and
called upon the appellees to answer certain interrogatories
in his said answer contained, touching his said claim of pay-
ment and set-off. The appellees answered said interrogato-
ries^ as will hereinafter be more fully shown,) and replied
generally to the auswers of appellant and wife ; and issue being
formed on these pleadings, a jury was impaneled for their
trial. They, having heard the proofs and allegations of the
parties, found the following special verdict, to wit :
First. That the brick work was done in a workmanlike
manner, and amounted to 682,098 brick.
Second. That the plastering was done in a workmanlike
manner, and amounted to 6,112 yards.
Third. That the defendant, Garrett, is entitled to credits
to the sum of $1776,00.
Fourth. That the complainants are entitled to the further
sum of $100.00, for furring, §135.00 for stone wall, and
lathing, &c. $168.37.
Fifth. That the complainants fulfilled the contract on
their part, and that the defendant, Garrett, failed to perform
his part of the contract, in furnishing materials and making
payments ; and on the whole case, we find that Augustus O.
Garrett is indebted to the complainants, for materials fur-
nished and labor performed, under the contract, and on the
lots of ground mentioned in the pleadings, in the sum(inclu-
ding interest, )of $2595.20.
The appellant, thereupon, entered successively his motions
for a new trial, and in arrest of judgment, which were over-
ruled, and he expected.
The court then, deducting from the amount found by the
jury the sum of $514.86, for the value and interest thereon
of 11,598 brick and 1712 yards of plastering, as having been
allowed by the jury to the appellees, beyond the amount
claimed by them in their pleadings, rendered a decree against
the appellant for the balance of $2,080.34, and decreed a lien
in favor of appellees upon the legal and equitable estate and
interest of the appellant in and to the lots described in the
266 SUPREME COURT.
Garrett v. Stevenson et al.
pleadings, and that the same be sold for the payment of the
amount of said decree, &c. That decree the appellant now
"brings into this court for revision, and assigns the following
errors, to wit : that the court erred,
1. In refusing to instruct the jury, on request of appel-
lant's counsel, that the appellant's answer was evidence of the
payments therein alleged.
2. In refusing to give instructions to* the jury as asked
by appellant's counsel.
3. In refusing to grant a new trial.
In, rendering judgment against appellant.
4. When the verdict was not sufficient to establish the
allegations of the pleadings on the part of the appellees.
5. When the certificate of the clerk of the Peoria Circuit
Court did not identify the pleadings in this case.
6. When the verdict did not conform to the issues joined
and was contrary thereto, and contrary to the case made by
the appellees.
7. When material issues had not been found, and there
was no finding as to Mary G. Garrett.
8. When the petition and the amended petition did not show
that appellees were entitled to any lien on the premises
claimed.
9. When the verdict allowed appellees for more work
and materials than they claimed in the pleadings under the
contract.
10. When the balance of payments made and proved by
appellant w;ts not deducted by the court from the amount of
the judgment.
11. In overruling appellant's motion in arrest of judg-
ment.
12. In rendering judgment against appellant without dis-
posing o' his co-defendant.
13. In not showing in the judgment what interest or
estate the appellant had in the premises, nor what estate
should be sold.
14. General assignment.
The questions arising on these assignments of error, involv-
DECEMBER TERM, 1846. 267
Garrett v. Stevenson etal.
ing as they do the correctness of the proceedings on the
trial of the cause, and the validity of its results, would seem
to demand for their proper understanding and correct solu-
tion, a thorough examination of the record not only as to
matters put in issue by the pleadings of the parties also
as to the testimony introduced by them pro and con upon
such issues. But it is not so. The case comes before us in
such an attitude as necessarily to confine out investigations
within much narrower limits. In a bill of exceptions taken
upon the trial, the sufficiency of the appellees' testimony to
sustain the verdict, except as to the appellees' account, dis-
tinctly appears by the admissions of the appellants. As to
that point, therefore, no examination need be made.
I will now proceed to consider and dispose of the assign-
ment of errors, but not in the order in which they are made.
The refusal of the circuit court to instruct the jury on
application of appellant's counsel, that appellant's answer
was evidence of the payments therein alleged, constitutes
the basis of the first and second errors assigned. Its
efficacy for such purpose is, therefore, the question in-
volved in these assignments of error. That it was evidence
in the particular referred to, if responsive to the appellees'
petition, is expressly settled by this court, in Kimball v.
Cook, 1 Gilman, 434. Then was it so responsive? We
will see.
The appellees base their right of recovery, not upon their
completion or fulfilment of the contract on their part, but
upon the alleged fact that after they had commenced the
work under their said contract, and when, being ready and
willing on their part to prosecute and finish it, they were
progressing towards its completion, they were compelled to
abandon it by reason of the appellant's refusal to pay them
therefor from time to time as payments became due to them
according to the terms of said contract. In their petition
they say: "Your complainants commenced working for said
Garrett, according to the terms of the contract, and con-
tinued to work for said Garrett till long after the time he
had refused to pay them, (your complainants,) according to
268 SUPREME COURT.
Garrett v. Stevenson et al.
the terms and conditions of the written contract above reci-
ted, " &c, and pray that " he may be summoned to answer
to this bill, and each fact therein contained."
In their amended petition, they use the following language,
to wit : "And your orators say they were always ready, and
willing, and desirous of proceeding in the erection and com-
pletion of said building, and were always provided with
workmen and materials, as they were required to do by the
terms of the said contract ; but the said Garrett, at all times,
from the time of making and entering into said contract,
neglected and refused to pay to your orators the money due
to your orators for the work, labor, and materials, done and
performed, and furnished by your orators for said Garrett, as
aforesaid, as he was required to do by said contract, though
your orators often requiring and demanding payment of said
Garrett, during the time when they were in the performance
of said labor, and often thereafter." And again they say :
" And the said Garrett has not paid your orators for their work,
labor and materials done and furnished as aforesaid, though
the same long since became due and payable, to wit : on the
1st day of July, 1840, and though often required so to do by
your orators, but the same remains due and unpaid." And
this amended petition concludes by requiring the appellant
" to answer the petition and amended petition." How, then,
any one can doubt that the allegations of payment in appel-
lant's answer are responsive to the allegations of the appellees,
in their petition and amended petition, that he had not paid,
I cannot conceive. He is called upon to answer " each fact"
stated in the petition, and his non-payment of the money
becoming due from him under the contract is one of the
alleged " facts" therein stated, and, as I think, of all others
the most important, as not only affecting the appellees' right
of action, but also limiting the extent of their demand. Nor
can it be said that the exhibition by the appellant of his bill
of particulars, showing specially each item of payment
claimed to have been made by him, any the less entitled the
answer to admissibility in evidence than it otherwise would
have been. Why, exceptions might well have been taken
DECEMBER TERM, 1846. 269
Garrett v. Stevenson et al.
to the answer, as not responding to all the material allega-
tions of the petition, if it had been silent as to payments by
appellant, and if answering as to that point in general terms,
that he had made payments, and not accompanying his
answer by a bill of particulars, he would have been com-
pelled, on appellee's request, to file one. Therefore, tried
by that test, (and it is an unerring one,) the answer was legal
evidence of the allegations of payment made by it.
But as to the claims set up by appellant in his answer, of a
set-off for damages sustained by him on account of the unskilful
and unworkmanlike manner in which, as he alleges, the appellees
performed their work, &c, it is otherwise. These allegations,
not being responsive to the petition, furnished no intrinsic evi-
dence of their own truth, and therefore the answer, for the pur-
pose of proving such demands, was not admissible in evidence.
This case furnishes an illustration of the rule laid down by
this court in Webb v. Lasater, 4 Scam. 547, the correctness of
which is now recognized. The court there, in speaking of the
extent to which the answer of a party to a suit commenced be-
fore a justice of the peace, when called upon by his adversary to
testify, according to the statute in such case made and provided,
may and should be received as evidence on the trial of such suit,
say : ''Like a defendant in a bill of discovery in aid of a proceed-
ing at law, the interrogatories addressed to him must have exclusive
reference to the matters alleged to rest exclusively, in his know-
ledge and that of the party calling for his testimony, and his
answers, so far as responsive to such interrogatories, but no far-
ther, must be evidence. If he has paid or discharged the demand
in reference to which he was sworn and interrogated, he may
state that fact, and such statement will be responsive to the
questions propounded to him. But if he only claims that he is
not legally bound tD pay such demand, by reason of his having
a subsisting account or set-off against the party calling on him
to testify, he cannot proceed to establish such account or set-
off by his own oath, by virtue of his having been sworn at the
instance of the adverse party."
270 SUPREME COURT.
Garrett t. Stevenson et al.
Nor is this rule confined in its application to answers to bills
of discovery merely, as supposed by the appellees' counsel, al-
though, in other proceedings in chancery for relief, the appeal to
the conscience of the defendant is not, as in cases of bills of
discovery, made ex necessitate rei, but grows out of the very
nature of the tribunal whose aid is invoked as a court of con-
science, yet the operation of the defendant's answer is in both
cases the same. His statements in either case are supposed so
far as they respond to the allegations of the bill, to be made not
of his own volition, but in obedience to the requisition made
upon him by the complainant, for the disclosure of facts resting
within his knowledge, and affecting the complainant's right to a
judgment at law or a decree in equity, as the case may be. He
is made pro hac vice, the complainant's witness, and, therefore,
the testimony given by him in that capacity may not be rejected
at complainant's instance.
The circuit court, therefore, erred in refusing the instructions
asked for by the appellant's counsel, and were this a proceeding
at law, that error would have entitled the appellant to a trial in
that court, and in this, to have the jugdment reversed, and the
cause remanded for a venire de novo, unless it had further ap-
peared from the record, that the allegations of payment in ap-
pellant's answer had been disproved by other testimony, but as will
be shown presently, it is within the power of this court to correct
the erroneous action of the court below, by reforming its decree,
if there be enough apparent upon the record to enable us to do
so; and looking at the interests of both parties, and consulting
their wishes as expressed by their respective counsel on the augu-
ment, it is perhaps our duty to make such disposition of it.
Then, have we such light before us as may guide us, in our
investigations of the rights of the parties involved in this con-
troversy, to a con'ect conclusion ?
The appellant, not relying alone on the efficacy of his
own answer as evidence of his claim for payments therein
made, chose to submit it as well as his demand for set-off to
the test of his adversaries' oath, by interrogating them in
DECEMBER TERM 1846. 271
Garrett v. Stevenson et al.
his answer in refer ence thereunto. Then considering the
answer so far as such interrogatories are concerned, as in
the nature of a cross bill, and the answer of the appellees
thereto, as evidence of the matter contained in it, so far as
responsive to those interrogatories, it remains to be seen
whether such answer of the appellees contains any statement
invalidating the appellant's claim for payments, already es-
tablished prima facie, by his own answer.
The appellees, after admitting in their answer specific
items of appellant's account for payments, amounting to the
sum of $1406.21|, go on to say, " Complainants further say
that they have no account of the amount of payments as
charged in said schedule or bill of particulars ; but after an
inspection of the orders drawn by them, (complanants,) on
the said Garrett, and such memoranda of their own as they
have had opportunity to inspect, and the pass-books, so
called, of the defendant, they admit the charges above herein
indicated, but they have no means of determining as to any
other of the items in said schedule or bill of particulars charged,
aud they, therefore, deny the same and call for the proof
thereof."
This hypothetical impeachment of appellant's account for
payments, neither destroys nor in any wise effects the evi-
dence supporting it, as found in appellees' answer, while
it does not render the statement itself admissible in evidence,
as contradictory of appellants's answer, it is insufficient to
create the necessity for corroborating that answer by evi-
dence aliunde. For such purpose, there should have been a
direct and unqualified denial of appellant's claim, and not
such a halting, evasive negation of appellant's affirmation, as
that under consideration, and which indicates a disposition
on the part of the appellees, while they cannot conscien-
tiously say that the appellant's demand is unjust, uncon-
cientiously to require him to prove that it is just. Such
mental reservations as seem to lurk in this answer, Equity ab-
hors. If made, or appearing to be made, as in this case, they
bring with iliem no immunity to him who uses them ; nothing
272 SUPREME COURT
Garrett v. Stevenson et al.
of inconvenience to his adversary. 6 liar. & Johns. 288,
291 ; 1 Paige, 210.
It follows from this view of the subject, the evidence found
in the appellant's answer in support of his accouut for payments
to appellees remaining unshaken by any thing contained in
appellees' answer, and there being no other evidence con-
tradictory of it, that his claim to an allowance to the
full amount of that account was thereby fully substantiated.
But in addition to this, looking at the character of this
entire transaction, the manner of appellant's making his
payments from time to time, and preserving his evidences
thereof, the admissions of the appellees, as proved by sev-
eral witnesses, of the correctness of portions, if not of the
whole of appellants account, and the great difficulty neces-
sarily to be encountered in making absolute proof of every
item of such an account, and I think the appellant's claim to
its allowance, is fully sustained by the other testimony in the
cause, as shown in the bill of exceptions, and wholly irre-
spective of his own answer.
But not so as to the other items of appellant's account
claimed by way of set-off. His answer, as has been shown,
furnished no evidence to prove them ; they are expressly
denied by appellees' answer, and there was no testimony
offered to sustain them ; therefore, they were properly disre-
garded by the jury.
It being thus determined that the whole account of appel-
lant for payments should have -been allowed him, and not
merely the amount found by the jury, and the appellant, (as
has b en shown,) having admitted that the evidence heard
on the trial on the part of appellees was sufficient to sustain
the verdict, except as to the appellant's account, it might
be supposed that no difficulty could be encountered in de-
termining what modification should be made by this Court
of the decree of the court below. It would seem to follow,
as a corollary, that our inquiry for the purposes of such
modification would have exclusive reference to the amount
DECEMBER TERM, 1846. 273
G-arrett v. Stevenson et al.
of appellant's account, and could in no wise affect the find-
ing of the jury as to the amount of appellee's account, and
consequently that the decree of the circuit court should be
reformed, by deducting from the sum found by the jury in
favor of the appellees an amount equal to the difference be-
tween the amount of appellant's payments, which should
have been allowed him, and the amount which by the ver-
dict was allowed him. And such would be the result, were
the matter unembarrassed by other considerations than the
mere determination of the state of accounts between the
parties, as proved on the one hand, and admitted to have
been proved on the other. But it is not thus unembarrassed,
and the difficulty already overcome, . in determining that
there should be some modification of the decree, is no greater
than that yet to be encountered, in determining what the
extent of that modification should be.
This difficulty finds its origin in several circumstances :
1. Although the appellant, having admitted the sufficiency
of the appellees' testimony to sustain the finding in their favor,
so far as their account against him was concerned, is now
estopped from mooting that point, yet he is at liberty to show,
and does show another good and sufficient reason why the
amount of that finding should be reduced, independently of
his, (appellant's,) account. He shoAvs by the record, that
the verdict is in several respects broader than the claim of
appellees, as exhibted by their petition and amended peti-
tion. This is complained of in the ninth error assigned, and
will be more fully noticed presently.
2. The jury, as appears from their verdict, would seem
to have allowed interest on the appellees' account, and if
such allowance was made, and was not authorized by law, a
deduction must of course be made therefor. V<&^ "*"
I will now proceed to demonstrate these positions, and so
far as the means within my reach will unable me to do so,
to place this case in the position, which justice and the
rights of the parties demand that it should occupy.
First. The finding of the jury in favor of the appellees
gil. in — 18.
274 SUPREME COURT.
Garrett a*. Stevenson et al.
exceeded their demand. As to the quantity of brick fur-
nished by appellees, the number of brick found by the jury
was 682, 098
The appellees claim in their petition, as
appears by reference thereto, and to
their bill of particulars, as
Laid in the house, 575,000
" " privy, 45,000
" " icehouse, 13,500
" " cistern, 3,000
" " front wall, 7,000
In all amounting to 643,500
And leaving over appellees' claim an excess of 38,598
In their amended petition, they claim as having been laid
in the house, 600,000, leaving the other items precisely as
stated in the original petition. This would swell their claim
to the extent of 25,000, which, deducted from the excess
found in their favor according to the claim of the original
petition, to wit 88,598, still leaves the excess in the verdict
over their claim to the amount of 13,598 brick.
The amount of deduction to be made from the sura found
by the jury to be due from appellant to appellees, is in ref<r-
ence to this excessive finding as to brick, easily ascertained.
The prices charged by the appellees for their brick, (as ap-
pears by their original and amended petitions, ) and which
were of course allowed by the jury, were for the 600,000
laid in the house, at the rate of $4 per M. and for the
residue $5, but as will be presently shown they ''probably
estimated the whole number found at $4. The excess of
13,598 found by the jury is, therefore, to be estimated at $4
per M. and shows the amount of deduction to be made on
that account, to be $54.39.
Second. The jury found the plastering done
to amount to 6,112 yards.
The appellees claim, inclusive of 400 yards
of rough coating in the ball room, only 4,400 "
Making an excess in favor of appellees of 1.712 "'
DECEMBER TERM, 1846. 275
Garrett v. Stevenson et al.
The price at which this plastering was probably estimated by
the jury, was 21 cents per yard. This appears from the state-
ment in a bill of exceptions taken by the appellees, that 400 yards
of two coat plastering was proved on the trial, and more than
4000 yards of three coat ; of course showing all over 400 yards
to have been of the latter character. The price charged for it
in the petition was that above stated, (21 cents per yard.)
The excess found in favor of appellees, viz ; 1712 yards at
21 cents, amounts to $359.52
To which add the value of the excess of brick, as
estimated above, 54.39
And it shows an allowance by the jury, exceeding
appellees' claim, of $413.91
It may here be remarked, that it appears by reference to the
bill of exceptions, that the circuit court fixed the excess of brick
found by the jury in favor of appellees over their claim a^
11.598 ; and of plastering, as found by this court at 1712 yards,
and for the value thereof, with interest, deducted as already
appears by a recital of its decree, the sum of $ 514.86.
I have shown that the entire account of appellant for payments
under his contract was proved, and should have been allowed
by the jury :
It amounted to $2673.23
He was allowed only 1776.00
Showing an error against him of $897.23
To this add the excess allowed for brick and
plastering, as shown above, 413.91
And it appears that the sum of $1311.14
was found against him by the jury, against the law and the
evidence. This sum, therefore, should certainly be de-
ducted from the balance found by the jury to be due from
the appellant to the appellees, for work done and materials
276 SUPREME COURT.
Garrett v. Stevenson et al.
furnished under the contract. It remains to be seen whether
any further deduction should be made or not.
As already said, it would seem from the language of the
verdict, that the jury allowed interest on the appellees' ac-
count, and hence the inquiries arise, was any such allowance
made? If so, was it authorized by law? and if made, and
not anthorized by law, what was the amount, thus improperly
allowed ? A negative answer to the first of these questions
would, of course, supersede the necessity of examining or
deciding either of the others.
For the solution of these questions, we find in the record
the most abundant data. The jury not only find, that
upon the whole case, the appellant owes the appellees a
certain sum of money for work done and materials furnished
under the contract, but they ^likewise exhibit the grounds
on which they base that result.
On the one hand, they find as to two items of the appellees'
account, (brick and plastering,) the quantity of materials
•found and work done under the contract, and as to the re-
maining items, the value thereof in terms ; thus furnishing
the means of ascertaining the whole amount of the appellees'
account, as estimated by them ; while on the other hand, they
show the amount of credits to which appellant is entitled
upon that account.
Then by adding to the sum specifically found due to ap-
pellees, that which would arise from a computation of the
value of the brick and plastering found to have been fur-
nished and done, at the prices fixed thereupon by the
contract, or shown by the bills of exceptions to have been
probably allowed by the jury, we have the gross amount of
appellees' account ; and deducting therefrom the amount of
credits allowed appellant by the jury, and the result shows
the balance due from appellant to appellees, according to
the finding of the jury. If that balance be less in amount
than the balance found due upon the whole case, by the
verdict, from the appellant to the appellees, then to the
extent of that deficit interest was allowed ; but it was other-
DECEMBER TERM, 1846. 277
Garrett v. Stevenson et al.
wise if there was no such deficit. Let us examine the matter
by that test.
The jury allowed for 682,098 brick ; the price claimed in
the petition was for 600,000 at the rate of $4 per M. mak-
ing $2400.00
For the residue $5 'per M. amounting to 410.49
They also found 6,112 yards of plastering to have
been done ; of this all but 400 yards, viz : 5,712
yards was three coat work, for which appellees
claim in their petition 21 cents per yard, 1199.52
The 400 yards were one or two coat work, and it
was proved, as appeared by the bill of excep-
tions, to have been worth half as much as the
other, . viz : 10 cents per yard, 42.00
They also fouud for furring, lathing, &c. 403.37
In all, 4455.38
They found appellant entitled to credits of 1776.00
This leaves a balance against appellant of $2679.38
But looking at the result, and we are ^brought to the con-
clusion that the jury allowed for all of the brick, only $4
per 1000. If so, we should make a deduction from the bal-
ance above stated, of $1 per M.' on 82,098 brick, to wit:
$82.09, and thus a balance would remain against the appel-
lant of $2597.29, differing "only to the extent of $2.09 from
the balance as found by the jury. Then who shall say, that
to make up the balance asscertained by the verdict, the ac-
count of the appellees was swollen by the allowance of interest t
To my mind, it is clear that such was not the case.
It will be reoollected, that the calculations made in estimat-
ing the value of the excess of brick and plastering found by the
jury for the purpose of a reduction pro tanto of the amount of
indebtedness fixed upon the appellant by the verdict, was based
upon the same hypothesis as to prices, tha the above calcula-
tions are :
278 SUPREME COURT.
Garrett t. Stevenson et al.
The result is, that from the balance found by the jury
against appellant, viz : $2595. '20
There is to be deducted the sum already found of 1311.14
Leaving against appellant a balance of $1284.06
for which the decree of the circuit court should have been
rendered.
These questions being settled, but very little remains to be
said of the errors assigned by appellant, yet to be disposed
of.
The power and duty of this court to correct the proceedings
of the circuit court, and upon the state of case made by the
whole record, to reform its decree, without reversing it and re-
manding the cause appearing, it follows that the third 'and ele-
venth errors in the order of assignment, assuming that the re-
fusal of the court to grant a new trial or arrest the judgment,
so vitiated its decree as to require its reversal, are untenable.
It may not, however, be improper here to add a few sugges-
tions on that point.
In courts of Law, the agency of juries is indispensable.
Their province is to determine the facts of the case, that of
the court, to settle the law arising on such facts. Hence tha
right of trial by jury in such couits is secured by constitu-
tional guaranty, rand a verdict being found there as to
material facts submitted for the settlement of a jury, the
court *in the rendition of its judgment, may not disregard
such finding. If, in the estimation of the court, it is wrong
either as to law or evidence, 4the court can avoid it only by
setting it aside, and granting a new trial, or by arresting the
judgment. The refusal to do so, is, in this State, assignable
for error by statutory enactment. But in the machinery of
courts of Equity, no such agency is necessary This results
from the constitution of such courts, and the peculiar
character of its jurisdiction. Every question made before
it is supposed to be addressed to the conscience of the Chan-
cellor, and the law and facts involved in any such question,
DECEMBER TERM 1846. 279
Garrett v. Stevenson et al.
must necessarily be determined by him ; therefore, when in
complicated cases of account or fraud, the aid of a jury is
invoked by the Chancellor, it is only to advise his conscience,
and the verdict being rendered, is not conclusive upon him,
nor necessarily to goveren in the rendition of his decree.
Its office is not to settle the facts, but to aid him in their
ascertainment that he] may settle them. Then although, the
Chancelor undoubtedly 5 may set aside a verdict, and order
another'trial by a jury, yet this should be of his own mere
motion the better to satisfy him as to the matters of fact in
issue, and not as|a matter of right, on the motion of either
party. But the Chancellor rejecting the verdict, so far as
inconsistent with the issues or incompatible with the testi-
mony, may go on to dispose of the case, as equity and justice
may demand, without either granting a new trial or arresting
the judgment, as in a court of law in such cases might be
necessary. Consequently, his refusal to do so is not assigna-
ble for u error.
This view of the subject disposes of most of the remaining
errors assigned, based as they are upon objections to the
verdict or the decree. The sixth, seventh, ninth, (which has
already been fully considered, ) and thirteenth, respectively
complain of defects in the verdict, which, in a proceeding of
law would have vitiated it, and required the court to grant
a new trial, or arrest the judgment ; and the fourth and
twelfth attack the decree, for being rendered on a verdict so
defective : but while the power of the court below to render
its decree according to the justice of the case was left un-
impaired by the defects in the verdict, either in not finding
as to matters that were in issue, or in finding as to matters
which were not in issue ; or in allowing more than was
claimed by the appellees, this court possesses plenary pow-
ers to correct any defect or error found either in the verdict
or decree, and thus to do justice between the parties.
With this general view of the subject, I might perhaps
properly, dismiss the further consideration of the assignment
of error, but there are several points demanding a more
specific notice.
280 SUPREME COURT.
Garrett v. Stevenson et al.
First. There was ^no finding by the jury, nor decree
by the court as to the defendant, Mary G. Garrett, as alleged
in the seventh and twelfth errors assigned, but these assign-
ments of error, although true in point of fact, are unsound
in law. Even if such defect could be made the ground work
here of an attack upon the decree below, as I have already
shown it cannot, still it would be wholly immaterial.
The only object of the appellees in making the said Mary
G. Garrett a party to this proceeding, as appears by their
amended petition, was to subject the fee simple estate in the
lots improved by them to sale, for the enforcement of their
lien ; for that purpose, alleging such estate to be in her, the
said Mary , but that the equitable estate therein was in the
appellant.
This allegation was contradicted by the appellant and his
co-defendant, only in so far as it claimed that the former
was the owner in equity of the lots in question. Upon that
point no evidence was adduced by the appellees to sustain
their allegations ; consequently no finding, as against Mary
G. Garrett, was necessary. But it would have been proper
that the circuit court should have dismissed the bill as to
her, and the defect in their decree in omitting to do so must
be rectified here.
Secondly. The estate of the appellant in the lots in ques-
tion was not determined by either the verdict or the decree
as urged in the thirteenth error assigned.
This objection, the appellant's counsel seem to consider
fatal to the appellee's right to enforce their lien against said
property, but it is not so. It does sufficiently appear by the
pleadings and proofs, that the said property was owned, in
fee simple, by the said Mary G. Garrett, the wife of the said
appellant, and consequently, that he owned an interest
therein, less than the fee simple. What that interest may
be, whether it simply embrace the rents and profits during
the coverture, or shall ripen into an estate for life, by rea-
son of his surviving his said wife, and thus becoming tenant
by the curtesy, is immaterial. Whatever it is, or may be,
the appellees are entitled to the full benefit of it, for the pay
DECEMBER TERM, 1846. 281
Garrett v. Stevenson et al.
ment of their demand against the appellant, for the improve-
ments put by them upon the property in which it exists, in
pursuance of their contract with him.
This disposes of the entire assignment of errors except the
fifth and eight; and of them, it is only necessary to say, that
the appellant does not rely on them, and moreover, that for
anything that appears to us, they ought not to affect the re-
sult in any respect.
And now, having eliminated from the great mass of matter
embodied in the record, those few prominent points, around
which the controversy of the parties seemed to settle, and
shown wherein the results of such controversy in the court
below ,were otherwise than they should have been, it only
remains for this court, by its final decree, to apply the proper
corrective to the evils growing out of those erroneous re-
sults.
It is the opinion of the court, that there was no error in
the decree of the circuit court, in allowing enforcement o^
appellees' lein upon the appellant's interest in the lots de-
scribed in the petition, for the balance due upon the demands
exhibited by them for materials furnished and work done by
them, in pursuance of their contract with said appellant, bufc
that in the amount of said balance as fixed by said decree
there was, and that in that particular said decree should he
reformed.
It is therefore ordered, adjudged and decreed, that the
said appellees do have and recover of the said appellant, the
sum of twelve hundred and eighty four dollars and six cents
for materials furnished and work done by them in. and abou^
the erection of a certain building upon the lots in the peti.
tion mentioned, to wit : Lots No. four and five, in block No.
eight, in the town and county of Peoria, in pursuance of their
contract with, said appellant ; and also their costs by them
about their suit in this behalf in the court below expended.
And that said appellees have their lein upon the legal and
equitable interest of the said appellant in and to the afore-
said lots and improvements thereon ; and that, for the satis-
faction of the aforesaid sum of $1284.06, with interest
282 SUPREME COURT.
Williams v. Judy.
thereon at six per cent, per annum from April 14th, 1846,
the date o£ the decree in the court below, and costs, the
same be sold ; and that special execution for the sale thereof
issue to the sheriff of the aforesaid county of Peoria.
And it is further ordered, adjudged and decreed, that if
the proceeds of such sale shall be insufficient to pay and
satisfy the aforesaid sum of $1284.06 and costs, > the said
appellees shall have their execution for the balance thereof
then remaining due, against the goods and chattels, lands
and tenements of the said appellant, as upon a judgment at
law. And if the proceeds arising from such sale shall ex-
ceed the amount of the aforesaid sum of money and costs,
the excess shall be paid to the said appellant, (a)
It is further considered, that the appellant recover of the
appellees his costs by him about his suit in their behalf in
this court expended.
And as to the defendant, Mary G. Garrett, it is decreed
that the amended petition be dismissed, and that she recover
her costs, &c.
Decree amended.
William Williams, appellant, v. Jacob Judy, appellee.
Appeal from Jo Daviess.
The rule is well settled, that the admissions of an assignor of a chose in action
may be given in evidence against the assignee, if the admissions were against
his interest when they were made.
To an action upon an assigned note brought by the assignee against the maker,
it was pleaded that the note was given lor money won at gaming. The plea
contained no averment that the note was assigned after it became due: Held,
that such an averment was unnecessary, notes for money won at gaming
being, by the statute, absolutely void.
Assumpsit in the Jo Daviess circuit court, brought by
the appellee against the appellant, upon an assigned note,
and heard before the Hon. Thomas C. Browne and a jury at
the June term 1846, when a verdict and judgment were
rendered for the plaintiff below for $282.
(n) Lieu Law Sec. 26.
\
DECEMBER TERM 1846. 283
Willams v. Judy.
The pleadings and evidence in the cause are stated by the
Court.
J. Butterfield, for the appellant.
The declarations of Whiteside, made after the note was due,
before it was negotiated, and while it lay dishonored in his hands,
were competent evidence .-
The admissions or declarations of the assignor of a chose in
action, made while he is the holder, are evidence against his as-
signee and all claiming under him ; when made before the as-
signment, the rule is universal, and the only qualification lies in
bills of exchange and promissory notes which pass from the hands
of the declarant, before due, to a bona fide holder in the
course of trade. 2 Phil. Ev. Notes, 663 ; 1 Greenl. Ev. 230,
§ 190 ; 21 Eng. Com. Law R. 296 ; 9 Greenl. 83 ; Story
on Bills, § 220.
The cases on this question are all collected and explained in
the Notes of Cowen & Hill to Phil. Ev. 663 to 668.
The principle is, while the vendor is in possession, are his
declarations the same as his acts ? Does the indorsee stand in
privity with the indorser, or is his claim paramount as an inno-
cent holder ? If the latter, his indorser's previous declarations
do not affect him, for he claims a right not under,
but superior to his indorser, directly from the law-merchant.
But the indorsee of a note, which is overdue when nego-
tiated, takes it% subject to all the equities existing between
the original parties he holds it under and in privity with
his indorser.
The general principle which lets in these declarations,
whenever a strict privity has been made out, has never been
broken in upon by the English courts, nor by the American
courts, excepting the supreme court of New York has pur-
sued a divided course, sometimes letting in these declarations
on the ground of privity, and sometimes rejecting them as
mere naked, independent hearsay.
In the case of Beach v. Wise, 1 Hill's ( N. Y. )R. 6L2,
Bronson, J. says : After reading the elaborate and learn-
ed review in 2 Phil. Ev. 644 to 668, and considering the
284 SUPREME COURT.
Williams v. Judy.
authorities there collected, I put my judgment upou the sole
ground that the point has been adjudged against the defendant
by those who have gone before me in this court. As an origi-
nal question, I should be unable to see any solid distinction be-
tween cases relating to real property, where the declarations of
the former owner are constantly admitted and those relating
to choses in action," &c.
A. T. Bledsoe, for the appellee.
The opinion of the court was delivered by
Caton, J. * This suit was brought by Judy against Williams
on a promissory note made by Williams, and payable to one
Whiteside, and dated on the 13th of April, 1839, for the sum of
two hundred dollars, and payable 30 days from date, and by
Whiteside assigned to Judy. The defendant filed pleas of the
general issue, and that the consideration of said note was for
money won at gaming. On the trial of the cause, the defend-
ant proved by one Reed, that he had seen the note in the pos-
session of Whiteside in September, 1839, after the same became
due, and that at that time the note had not been assigned. The
defendant then offered to prove, that at the same time Whiteside,
the payee of the note, admitted that it was given for money won
at gaming. Upon the objection of the plaintiff's counsel, the
court held these admissions to be incompetent evidence. This
decision of the court presents the only material question for our
consideration, and is presented for the first time to this court
for its decision.
We find it abundantly settled by authority, and it is well
supported by reason, that the admissions of an assignor of a
chose in action may be given in evidence against the as-
signee, if the admissions were against his interest at the time,
especially if a cause of action existed presently, when the
admissions were made.
In the case of Pocock v. Billing, 2 Bing. 269, Best, C. J.
*Thonias, J. having been counsel in this case, took no part in its decision. |
DECEMBER TERM, 1846. 285
Williams v. Judy.
said: " In order to render these declarations receivable, it
ought to have been shown, that the party making them was
the holder of the bill at the time. They are admissions, and
as such receivable only when they are supposed to be ad-
verse to the interest of the party. " In this case, subse^
quently, at Nisi Prius, these admissions of the assignor of
the hill were admitted in evidence against the assignee it
having been proved that the admissions were made before
the assignment. Ry. & Mood. 127.
In Shirley v. Todd, 9 Greenl. 83, it was held that such
admissions were competent evidence. Weston, J. in giving
the Opinion of the Court says: "We are satisfied that the
declarations of Moses Shirley, the payee of the order, while
the interest was in him, are admissable in evidence." In
that case the admissions were made, as in this, after the
maturity of the paper, and before its transfer (a)
We deem it unnecessary to refer to the great multitude of
cases on this subject, especially as they are principally all
collected and commented upon by Messrs. Cowen & Hill in
their notes to Phillips' Evidence, 663-8. It may be said that
there is but one Court whose decision forms an exception to
this rule, and that is the Supreme Court of New York
Since the collection of the cases on this subject by Cowen
& Hill, this question has again been before that Court in
the case of Beach v. Wise, 1 Hill's (N.Y.) R. 612. There
the present Chief Justice of that Court, in the decision of th^
case, expresses his disapprobation of the rule, as former^
established by that court, but finally follows the former
decisions, not feeling himself at liberty to overrule the de-
cisions of those who had gone before him. He says: "As
an original question I should be unable to see any settled
distinction between cases relating to real property, where
the declarations of the former owner are constantly admit-
ted, and those relating to choses in action and other personal
property, where, as we have seen, such declarations are re-
jected. " I confess myself unable to see any distinction
• at all.
It was objected by the defendant in error that there is no
(a) Dazy vs. Mills, 5 Gil. R. 70.
286 SUPREME COURT.
Dunlap v. Ennis.
averment in the pleas, that the note was assigned after it
became due. That "was unnecessary, for by our statute,
notes, kc. given for money won at gaming are declared to
be absolutely void, even in the hands of the assignee; hence,
it was unnecessary to snow that the note was received by
the a?signee mala fide. Besides, this is not a question of
pleading, but of evidence, and the presence or absence of*
such an averment could have no influence upon the admissi-
bility of the proposed evidence.
The judgment of the Circuit Court must be reversed with
costs, and the cause remanded for a new trial.
Judgment reversed.
Edward J. Dunlap, appellant, v. Henry E-;nis. appellee.
Appeal from Morgan .
A. sued B . before a Probate Justice of the Peace. The summons in the cause
concluded thus: " Given under my hand and seal at my office at Jackson-
ville, this 27th day of November, 1S45. Mat. Stacy, P. J. P. [Seal.]"
Judgment was rendered against the defendant by default, and he appealed
to the circuit court, where a motion was made to dismiss the case, because
the Probate Justice had not affixed his seal of office to the original sum-
mons, but the motion was denied : Held, that the motion was properly de-
nied.
Under the existing law relating to Probate Courts, the powers of the Probate
Justice are of a two-fold charac er : first, he is to preside over the Probate
court, and perform the duties imposed on that court : and second, he is
vested with the jurisdiction of a justice of the peace in civil cases. The
statute requiring the Probate court to keep a seal, when acting in the
capacity of Probate justice merely, he must annex such seal to his process
and certificates: but when only exercising the powers of a justice of the
peace, he is not required to use the official seal, (a)
THis was an appeal to the Circuit Court of Morgan county
from the Probate Justice of the Peace, who issued a summons
in the case, but did not attach thereto his seal of office, but
affixed [ Seal. ] at the end of his signature. The summons
was served upon the defendant below, Dunlap, and a judg-
ment by default was rendered against him, for $70.22.
In the Circuit Court, at the May term 1840, the Hon.
o) Lawa ofis:oi>. 6-2
DECEMBER TERM, 1846. 287
Dunlap v. Ennis.
Samuel D. Lockwood presiding, the defendant entered a motion
to quash the summons issued by the Probate Justice of the
Peace, and dismiss the proceedings, because it did not issue un-
der the seal of said Probate Court, as required by law. The
motion was overruled, and a judgment was rendered against the
defendant for $72.31 debt and interest, and five per cent, da-
mages, [$3.61, ] in addition thereto.
The refusal to dismiss the suit and quash the writ, and the
rendition of the judgment aforesaid, were assigned for error in
this court.
M. McConnell, for the plaintiff in error.
The Probate Court is required to have a seal. Rev. Stat.
127, §8.
All kinds of process issued by him must be under the seal
of said court. lb. 428, § 16.
If there is no public seal, his private seal will answer. lb. §
11. Those laws are positive upon the subject, and admit of no
misconstruction.
All process issuing without seal from a court having a seal
is void. Boal v. King, 6 Ham. 11.
As to what is a seal, see Warren v. Lynch, 5 Johns. 239.
A scrawl or ink, in the place of a seal, does not constitute a
seal. Pcrine v. Cheeseman, 6 Halsted, 174 : 5 Johns. 2o9 ;
State v. Vaughn, Harper, 213 ; Filkins v. Brockway, 19 Johns.
170.
H. Dusenbury, for the appellee, admitted the general doc-
trine, that "all process issuing without a seal, from a court of
record having a seal, is void, " but insisted that this doctrine
does not apply to Probate Justices of the Peace, when acting,
in the State of Illinois, in the capacity of justices of the peace.
The Probate Justice of the Peace is, by the statute laws of
Illinois, created a duplex officer. He is required to act as a
Probate Judge, ami also as a justice of the peace. When acting
in the ministerial character of Probate Judge, his powers
and duties are, by th.3 Revised Statutes, plainly defined, and
288 SUPREME COURT.
Dunlap v. Ennis.
the writs which issue from his Probate court must issue under
his official seal. His other character is that of an ordinary jus-
tice of the peace. In this, he is invested with the same powers
and jurisdiction in civil cases which are conferred by law upon
other justices ef the peace, and, in the exercise of such powers
and jurisdiction, the same rules of law which are applicable to
ordinary justices of the peace are applicable to the said Pro-
bate Justices of the Peace, and to all proceedings before them
growing out of such power and jurisdiction. Rev. Stat. 427,
§ L
The writ of summons is in the form required by the statute.
lb. 317 § 2i. A scrawl has the same effect as a seal. lb. 421,
§ 56.
The appellant cannot here take any exception to the form or
service of the original summons which he could not take on the
trial of the appeal in the court below. lb. 325, § 66.
The defendant below was entitled to his damages, in conse-
quence of the delay. lb. 421, § 57.
The opinion of the court was delivered by
Treat, J. This suit was commenced before the Probate
Justice of the Peace of Morgan County by Ennis against Dun-
lap, to recover the amount due on a promissory note for $70,
made by the latter to the former, bearing date the 11th of No-
vember, 1844. The summons was in the usual form, conclud-
ing thus : "Given under my hand and seal, at my office in
Jacksonville, this 27th day of November, 1845. Mat. Stacy,
P. J. P. [Seal.]" It was served on Dunlap, and a judgment by
default was rendered against him for $70.22, from which he ap-
pealed to the circuit court. In the latter court, he entered a
motion to dismiss the case, because the Probate Justice had
not affixed his seal of office to the original summons. The mo-
tion was denied, and the judgment of the Probate Justice affirm-
ed.
The decision of the circuit court, overruling the motion
to dismiss, is assigned for error. It is insisted that the sum-
mons was void, for the want of the official seal of the Pro-
bate Justice. For a correct determination of this question,
DECEMBER TERM 1846. 289
Dunlap v. Ennis.
it will be necessary to look into the constitution of the court
of Probate as at present organized. Formerly, this court was
held by an office styled the Judge of Probate, who in the
exercise of the functions of his office, was 'limited to matters
strictly appertaining to the court of Probate. This court
was abolished and its powers and jurisdiction were trans-
ferred to the present court of Probate, established in its
stead ; and the officer of Probate Justice of the Peace was
created to discharge the functions of the new court. This
officer now exercises all the powers formerly vested in the
Judge of Probate. The present court of Probate, like the
one which preceded it, is required to have a public seal,
and to issue its process and certify its proceedings under
such seal, except where no seal has been provided for the
court, when the private seal of the Probate Justice may be
substituted. See the 8th and 11th sections of the 85th
chapter of the Revised Statutes. In addition to the powers
formerly possessed by the Judges of Probate, the Probate
Justices are "vested with the same powers and jurisdiction
in civil cases which are or shall be conferred by law upon
others justices of the peace, and in the exercise of said
powers and jurisdiction, the rules of law, which are or shall
be applicable to ordinary justices of the peace, shall be ap-
plicable to Probate Justices of the Peace hereby created,
and to all proceedings before them, growing out of such
power and jurisdiction." lb. chap. 85, § 4. It is mani-
fest that the powers of the Probate Justice are of a
two-fold character, for, first, he is to preside over the Pro-
bate court, and perform the duties imposed on that court ;
and, second, he is vested with the jurisdiction of a justice of
the peace in civil cases. The two classes of powers, al-
though conferred on the same officer, are distinct in their
nature, having no necessary connection with each other.
While he is acting in the capacity of Judge of the Probate
court, the process and proceeding thereof must be issued
and certified under the public seal, or under his private seal
if no seal has been provided for the court. The seal re-
quired by the statute is the seal of the Probate court, and
gil. in. — 19.
290 SUPREME COURT.
Dunlap v. Eimis.
not of the officer holding the court ; and he need only make
use of the seal when he is discharging the duties properly
pertaining to the court. When he is exercising the jurisdiction
of an ordinary justice of the peace, he is to be governed by the
rules applicable to that officer. A justice of the peace has no
seal of office, and when the Probate Justice is acting in that ca-
pacity, he need not affix the seal of the Probate court to his pro-
cess. The 21st section of the 59th chapter of the Revised
Statutes precribes the form of the summons to be issued by
iustices of the peace, and the process in the present case pursues
the form precisely, (a) The subject matter of this case was clear-
ly within the jurisdiction of a justice of the peace ; and neither
of the parties being an administrator or executor, the Probate
court had no jurisdiction whatever over it. The Probate Justice,
in taking cognizance of the case must, therefore, have acted in
the capacity of a justice of the peace. His proceedings have
been regular, and the circuit court decided correctly in refusing
to dismiss the case, and in affirming the judgment. The judg-
ment of the circuit court is affirmed, with costs.
Judgment affirmed.
(a) WUliams vs. Blakenship, 12 111. R. 122.
DECEMBER TERM, 1846. 291
Ballance v. Fortier et al.
Charles Ballance, plaintiff in error, v. Bartholomew
Fortier et al., defendants in error.
Error to Peoria.
A complaint for forcible entry and detainer contained the following averments,
to wit: that the complainant was the owner of the premises in question and
had, for more than ten years, been in the actual possession; that he put A.
and B. into possession as his tenants for a specified rent; th.it soon alter, B.
left the country, A. still remaining in possession, who continued his tenant
for a long time, paying rent occasionally; that before he left the premises
he and C. called on complainant to obtain permission for A. to transfer his
lease to C. and the complainant assenting thereto, C. entered into possession
and paid a portion of the rent; that recently,!) . claiming to own said premi-
ses, bribed (J, to attorn to him, and D. then entered and underlet the premises
to C; and that said C. and D. hold the premises against the affiant, refuse
to pay rent to complainant, and that, by non-payment of rent, he was, by the
terms of the lease, entitled to re-enter and possess said premises and had de-
manded the same in writing : Held that the complaint was substantially
sufficient; that it was only necessary to aver a demand in general terms and
that the lease provided for a re-entry for non-payment of rent; that the de-
fendants, under the circumstances, were not entitled to six months' notice :
and that the collusion between C. and D. avoided [their contract of at-
tornment.
Complaint for a forcible entry and detainer, before Thomas
Bryant, Esq. a justice of the peace of Peoria County, brought
by the plaintiff in error against the defendants in error. At
the trial before the said justice and a jury, a verdict and
judgment were rendered for the complainant. The defendants
appealed to the Circuit Court of Peoria County, and at the
October term 1846, the Hon. John D. Caton presiding, the
complaint, or motion of the defendant, was dismissed.
A copy of the complaint is embodied in the opinion of
the court.
C. Ballance, pro se replied on the following points :
1. A tenant attorning to a stranger forfeits his lease ;
2. A tenant refusing to pay rent or acknowledge his land-
lord forfeits his lease ; and
292 SUPREME COURT.
Ballauce v. Fortier et al.
3. The lease is void by its own provisions for non-payment of
rent.
In support of these positions, he citied the following author-
ities : Rev. Stat. 325, 257 : Brubaker v. Poage, 1 Monroe,
128; Ewing v. Bowling, 2 A. K. Marsh. 36; The People v.
Runkle, 9 Johns. 147 ; Moore v. Read, 1 Blackf. 177 ; The
People, &c. v. Godfrey, 1 Hall, 240 ; Same v. VanNostrand,
9 Wend. 52 ; Pollard v. Otter, 4 Dana, 516 ; Elms v. Randall
2 do. 100.
0. Peters, and E. N. Powell, for the defendants in error.
The only question presented by the assignment of errors,
is, whether the complaint was sufficient, and whether the
Court properly dismissed the suit for such insufficiency.
The complaint is insufficient for the following reasons, to
wit:
1. It does not show how, or when demand was made of the
defendants to deliver up possession. This should appear in the
complaint, by averring it, or by copy of the demand verified
by affidavit attached, as in ejectment, or in some other way, so
that the court may see that proper demand was made. Rev.
Stat. 256, 701.
2. It does not show that the relation of landlord and tenant
existed between the parties, or if this does incidently appear, it
does not appear that the defendants held over " wilfully and
without force," after the determination of the lease. Wells v.
Hogan, Bre. 264.
3. The complaint does not show that the complainant, at
the commencement of the suit, was entitled to the possession
of the premises. It alleges, that by the terms of the lease he
had a right to re-enter and take possession, but nowhere
avers or claims a present right. It states what the complain-
ant claims to be the legal construction and effect of his lease,
bit claims no legal subsisting right of possession, nor does it
show that he ever entered, or attempted to re-enter. This should
be done, because by the language of the statute, §1, no offence
is incurred by the tenant until after demand made by the person
entitled to such possession. .
4. It does not show that the relation of landlord and tenant
DECEMBER TERM, 1846. 293
Ballance v. Fortier et al,
existed, or ever existed, between Ballance and Fortier, but
it shows that Blumb became the tenant of Fortier. With-
out this relation, the plaintiff cannot have this remedy. At-
kinson v. Lester, 1 Scam. 407. And this relation must exist
between the complainant and all of the defendants, for where
there are several defendants, and one of them shows that the
action is not well brought as to him, it fails as to all. 2 U.
S. Dig. 433, § 79. Fortier was not the tenant of the plain-
tiff, either directly, or as the sub-tenant of Blumb or Na-
chand. There is no privity whatever between them. Fortier
claimed title, and entered under that claim of title. Blumb
acknowledged the right and attorned ; but the complaint does
deny the title of Fortier. The complaint must show that
both were tenants. 2. A. K. Marsh. 38. Defendants must
as tenants of plaintiff.
5. It does not show when the lease or tenancy terminated,
nor when the demand for the possession was made, whether
before or after the tenancy terminated ; or whether before or
after the plaintiff had a right to re-enter. The complaint is
silent as to this ; it may have been made before Mr. Ballance
was the owner, or before there was any pretence of forfeit-
ure ; non constat, but the demand was made the next day
after the commencement of Blumb's term, and before Fortier
set up any claim of right, or made any entry ; so that it does
not appear that there was any holding over " wilfully and
without force." .
6. Though the plaintiff claims to oust the defendants by
reason of a forfeiture for the non-payment of rent, yet it no-
where appears that there was any rent in arrear. By his
own showing, the term had not expired. He charges that
the defendants refuse to pay rent ; defendants answer that
they may well do so, because plaintiff does not even charge
them that there is any rent in arrear, but says that rent has
been paid, but he does not know how much.
7. If complaint impliedly shows any tenancy, it does not
show whether it was tenancy for years, or from year to year,
or at will.
The complaint shows that the Nachands were to pay an
annual rent of $30. This probably made them tenants from
294 SUPREME COURT.
Ballance v. Fortier et al.
year to year ; thus they were entitled to six months notice to
quit. This does not appear to have been given. 4 Kent's
Com. Ill, and post. Ellis v. Paige, 2 Pick. 71, note.
If the defendants were (or either of them) tenants at will,
then this remedy is not given by the statute. The remedy
is only where the tenant holds over after the time they were
let to him. This can only mean a time certain, a time fixed
by the parties, and not an uncertain and capricious deter-
mination of the will of the landlord. The statute means a
" letting" for a " time."
But if the paying of an annual rent made the lessees ten-
ants from year to year, and thereby rendered a notice of six
months necessary, and a demand of possession after the ex-
piration of the six months, and before suit brought, it shows
still more the necessity of alleging in the complaint when
the demand AYas necessary.
" This proceeding being contrary to the course of the
Common Law," the jurisdiction must be shown, the justice
must see that he has jurisdiction, and not leave it to be
shown in pais. It is matter of averment, and not of [ proof
without averment. Wells v. Hogan, Bre. 264.
8. The complaint does not show what kind of estate the
plaintiff has in the premises. This is necessary. See 1 U.
S. Dig. 242, 432, § § 63-69 ; 13 Johns. 158 ; 1 Hall, 240.
Nor does it show that he had any legal estate until the day
he commenced this suit. He says he is the owner, and for
ten years has been in the possession of the lot, but what title
or right he had when he demanded possession, does not ap-
pear.
9. Though the complaint alleges that Fortier bribed Blumb
to attorn it does not allege that Blumb did in fact attorn.
The distinction between an agreement to attorn, and actually
attorning is palpable.
The opinion of the court was delivered by
Koerner, J.* This was an action commenced by Charles
Ballance, the plaintiff below, under the 43d chapter of - the
*Purple, J. did not sit in this case.
DECEMBER TERM, 1846. 295
Ballance v. Fortier et al.
Revised Statutes, providing a remedy in cases of forcible en-
try and detainer, before a justice of the peace. Verdict and
judgment were for plaintiff, and the defendants, Fortier and
Blumb, appealed to the circuit court of Peoria County, where,
at the October term 1846, the suit was dismissed on defend-
ant's motion, for the reason that the complaint filed by the
plaintiff was uncertain and insufficient, and showed no cause
of action. The dismissal of the canse for the reason just men-
tioned is the only error assigned.
The complaint is as follows :
"The complaint of Charles Ballance, of Peoria, in said
county, who being duly sworn, upon his oath gives Thomas
Bryant, Esq., one of the justices of the peace of said county
to understand and be informed, that he, the said Ballance, is
the owner, and for more than ten years has been in the
actual possession of a lot of ground in the town of Peoria, in
said county, bounded as follows : Beginning at the north-
easterly corner of the house built by Isaac Underhill and
Aquilla Wren for a pork house, but which is now used by
William R. Hopkins as a foundry ; running thence up to Water
street sixty feet ; thence across from said street at right
angles 171 feet ; thence down at right angles the course of
Water street 60 feet ; thence to the place of beginning ; and
on the 10th day of December, 1841, affiant put one John
Nachand and Philip Nachand into possession of said premises
as tenants of affiant, for a specific rent, to wit : the annual
rent of $30. That soon after, but the date is not now known,
said Philip left this part of the country, leaving said John in
possession of said premises, and said John occupied the same
as tenant of affiant for a length of time not recollected, but
supposed to be as much as three yeai'S, and paid rent occa-
sionally during said time, to this affiant, but how much of
said rent was thus paid he cannot state, because a settle-
ment has not been made between said John and this affiant';
afterwards, and before said Nachand left said premises, he
and one Peter Blumb called upon this affiant to know if he,
affiant, would consent that said John should transfer said
lease to said Blumb, and except him as a tenant instead of
296 SUPREME COURT.
Ballance v. Fortier et al.
said John, whereupon this affiant consented to said arrange-
ment, and said Blumb thereupon entered into said premises
as the tenant' of this affiant, and paid in carpenters' work
a part of the rent for the same, but how much this affiant
cannot state, not knowing the value of said work. About
ten days ago, affiant is informed and believes, that one Bar-
tholomew Fortier who pretends to have a claim to said lot,
bribed said Blumb to attorn to him, and acknowledge him
as his landlord ; and in pursuance of this arrangement, said
Fortier did enter said premises, and underlet a part thereof to
said Blumb ; and now said Blumb and Fortier hold said
premises against this affiant, and both refuse to pay rent, and
acknowledge him as landlord of the premises.
Affiant further gives said justice to understand and be infor-
med, that the lease under which said John and Philip Nach-
and entered into said premises has long since been forfeited
for non-payment of rent, and affiant, by express provision of
said lease, has a right to re-enter and take possession of said
premises ; but said Fortier and Blumb refuse to let him do so ;
wherefore affiant saith that said Fortier and Blumb wilfully hold
the possession of the said premises against law and the will
of this affiant notwithstanding; demand has been made in writ-
ing by this complainant upon them to quit and deliver up pos-
session thereof to him. Therefore he prays that the said Bar-
tholomew Fortier and Peter Blumb may be summoned to an-
swer to the said complaint.
C. Ballance.
Sworn to March 2d, 1846, before T. Bryant, J. P."
The clause of the statute which is applicable to the case pre-
sented by this complaint reads as follows : "If any person
shall wilfully and with out force hold over any lands, tenements
or other possessions, after the determination of the time for
which such lands, tenements or possessions were let to him, or
to the person under whom he claims, after demand made in writ-
ing for possession thereof, by the person entitled to such pos-
session, such person shall be adjudged guilty of a forcible de-
tainer."
It is true that the comnlaint contains some immaterial
DECEMBER TERM, 1846. 297
Ballance v. Fortier et al.
matter, and that what is material, is not stated with great
clearness or precision. We are, however, of opinion that
it is sufficient in substance. Although this is a statutory
remedy, which requires that the proceedings under it should
strictly conform to the provisions of the statute, it does not
necessarily follow that the pleadings of the parties should
be as technical as they are required to be in the Superior
Courts. In the complaint of this kind, which must be made
before a justice of the peace in the first instance, who by the
fourth section of said chapter is required to set down the
complaint in writing, the rule that every intendment must be
taken against the pleader, would *bc manifestly unjust and
would but illy comport with the liberal spirit in regard to
proceedings before justices 'of the peace, which seems to
pervade the acts of our Legislature. The complaint shows
that Blumb was the tenant of Ballance, that he had paid only
a part of the rent; chat the lease to which Blumb had be-
come a party contained an express provision, giving Ballance
aright to re-enter for non-payment of rent; that by collusion
with Blumb, Fortier was let into possession, and was ac-
knowledged by him as landlord, and that Biumb now holds
part of the premises under Fortier. Also, that demand has
been made in writing by the complainant for the possession
of the premises.
The defendants' counsel have raised very numerous objec-
tions to this complaint, some of which I deem it proper to
notice. It is objected, that it is not shown how or when the
demand for possession was made, nor what the terms of the
lease were. This, in my opinion, is matter of proof, and all
that is necessary to aver is, that demand was made and that
the lease provided for a re-entry for non-payment of rent.
It is also objected that the complaint does not show that
Ballance was entitled to the possession at the time of the
commencement of the action ; but as Blumb was at the
time his lesse, he was certainly entitled to possession as to
him. If his own right had ceased, and an exception existed
to the general rule, that the tenant cannot dispute his land-
lord's title, so that Blumb had a right to attorn, it was matter
298 SUPREME COURT.
Ballance v. For tier eta).
of defence, and Ballance was not bound to negative it by
allegations in bis complaint. It is also urged, tbat the de-
fendants were entitled to six months notice to quit ; but if
Ballance had a right to re- enter under the lease, or if the
lease was forfeited by attornment, and the complaint assumes
both these grounds, no notice farther than the statute re-
quires was necessary, even if a tenant from year to year
were entitled under our laws to six months' notice. It is
also insisted, that there was no privity between Fortier and
Blumb, inasmuch as Fortier does not claim under Blumb,
but Blumb under him, and that consequently Fortier was no
party, and the proceeding irregular. But we cannot admit
this plea ; for the purposes of this ^peculiar remedy, which
would not be worth the name, if another construction were
given, we must necessarily consider Fortier^as holding under
Blumb. The collusion between the parties which is charged
here, avoids their contract of attornment, and leaves the
naked fact remaining, that Fortier, in some way or another,
came in by permission of Blumb, and, as against Ballance,
holds under Blumb. (a)
Upon the whole, we are satisfied that the complaint,
though justly liable to many objections of a formal character,
contains substance enough to give the magistrate jurisdic-
tion, and that is all the law requires. The judgment below
is reversed with costs, and the cause remanded for further
proceedings.
Judgment reversed.
(«) Walker vs. Ellis, 12 111. R. 476 ; McCartney vs. Hunt, 16 til. R. 78.
DECEMRER TERM 1846. 299
Granger v. Warrington.
Elihu Granger plaintiff in error, v. Henry Warrington,
defendant in error.
Error to Bu Page.
A party, who has obtained a change of venue, taken several steps in the cause,
consented to a continuance, and at a subsequent term, submitted the cause
for trial without objection, cannot obtain an order of dismissal, for the rea-
son that the original papers in the cause had not been transmitted by the
clerk from the county where the suit was commenced. Application for a
rule upon the clerk of the court to send the original papers should be made
at the first term after obtaining a change of venue, (a)
A party, who has neglected to join in demurrer, cannot complain that the cause
was submitted for trial on other issues properly formed, without any dispo-
sition being made of such demurrer.
In an action on the case for malicious prosecution, the record of the suit alleg-
ed to be malicious was offered to be read in evidence. Objection was made
that it contained improper matter to go before the jury, but the objection
was overruled, and the record was introduced : Held, that if a transcript
contains any matter not pertinent to the issue on trial the proper course is
to apply to the court for an instruction to the jury to disregard it.
To exclude evidence from the jury, because of irrelevancy, the irrelevancy
must be clear.
To entitle communications between individuals to be considered as confiden-
• tial and privileged, the relation of client and attorney must exist. The party
must consult the attorney in a matter in which his private interest is con-
cerned, and make his cause, so that he may manage with greater or
skill; or if legal advice ouly is wanted, to enable the attorney the better to
eounsel him as to his legal rights.
Grant! jurors are competent wituessess to prove facts which came to their
knowledge while acting in such capacity.
The law is well settled, that parol evidence may be given of the contents, of a
"lost wiiting after the fact of the loss has been satisfactorily established.
A refusal to grant a motion for a new trial for want of evidence cannot be as-
signed as error, when the whole evidence is not stated to be contained in
the bill of exceptions.
Case for a malicious prosecution, originally commenced
by the defendant in error against the plaintiff in error in the
Cook Circuit Court, but removed by change of venue to the
Du Page Circuit Court, and heard before the Hon. Richard
M. Young and a jury at the May term, 1846, when a verdict
(a) Hit* vs. Allen, 13 III. R. 592. •
300 SUPREME COURT.
Granger v. Warrington.
was rendered for the plaintiff for the sum of $500. A motion
for a new trial was made and overruled, to which the defend-
ant excepted.
The various proceedings in the cause are stated by the court.
I. N. Arnold, for the plaintifi in error, contended
1. That the cause was not properly in the Du Page Circuit
Court. Wight v. Kilpatrick, 4 Scam. 340.
2. That the cause was not properly before the jury, there
being an issue of law pending and undetermined. Nye v.
Wright, 2 Scam. 222 ; Weatherf ord v Wilson, lb. 256 ; McKin-
ney v. May, 1 do. 534 ; Bradshaw v. Mc Kinney, 4 do. 54.
3. That the transcript of the proceedings in the trespass case
should have been excluded, as it contained the affidavit of War-
rington. Anthoine v. Coit, 2 Hall's Sup. Ct. R. 40.
4. The testimony in regard to Moffet's pecuniary circum-
stances was irrelevant and incompetent.
5. Evidence of the conversation between Granger and Curtiss,
the prosecuting attorney, was improper, it being privileged and
confidential. 1 Greenl. Ev. § § 237, 240, 252, and notes ; 2
Phil. Ev. 282 : McLellan v. Richardson, 13 Maine, (1 Shepley,)
82.
6. Gray, the grand juror, was an incompetent witness.
7. The parol evidence of the bill of sale of the horse was
improperly admitted.
8. A new trial should have been granted.
E. W. Tracy, for the defendant in error.
It was too late for the party to raise the objection in
regard to the transmission of the original^ papers, after hav-
ing pleaded in the Du Page Circuit Court. Rev. Stat. 529,
§ 9. Further, they are referred to in the bill of exceptions
and assignment of errors as the original papers. Consensus
tollit errorem. In the case of Wight v. Kirkpatrick, no
DECEMBER TERM, 1846. 301
Granger v. Warrington.
steps had been taken in the progress of the cause, but the
objection was taken in the first instance.
There was no joinder in demurrer. In the case referred
to in 2 Scam. 222, there was a joinder in demurrer, a plea
and issue to the jury. Greenleaf's Lessee v. Burt 5
Peters, 131.
The record of the trespass case was properly admitted in
evidence. The affidavit was proper to go to the jury as a
part of the record. If liable to objection, the party should
have asked the court to instruct the jury that it was not
evidence. The plaintiff in error has cited a case in 2 Hall's
Sup. Ct. R. The affidavit came in incidentally, and "was
not material as evidence. See 2 Saund. on PI. and Ev.
title, " Malicious arrest," &c. ; 3 Stephens' Nisi Prius, 2266,
same title.
It is objected that the testimony in relation to Moffett's
circumstances was improperly received. The testimony
was proper, as showing the security frivolous, and tended
to show malice, rather than a desire to secure a just debt.
There are two kinds of malice, legal and express. The for-
mer is made out by proof of want of probable cause.
As to the defect, if any, in making up the verdict, &c.
That was a mere matter of form, and cured by the Statute
of Amendments and Jeofails. Ross v. Reddick, 1 Scam. 74 ;
Lincoln v. Cook, 2 do. 61.
The objection to the testimony of the grand juror, Gray,
is without foundation. Grand jurors may testify as to ex-
trinsic facts, though public policy dictates, as a general
rule, that their proceeding should be kept secret. 2 Wheat.
Selw. 1091 , 1 Greenl. Ev. 300, note ; Freeman v. Arkill,
2 Barn. & Cres. 494 ; 3 Stephens' N. P. 2286 ; Lowe's case,
4 Greenl. 439 ; Rogers v. Hall, 3 Scam. 45 ; 3 Johns. 234 ;
4 C. & P. 444.
The assignments of error are too vague and general.
Rowan v. Dosh, 4 Scam. 461 ; Rog^ee- v. Hall, 3 do. 45 ;
McKee v. Ingalls, 4 do. $0 ; Camden v. Doremus' 3 How.
( U. S. ) R. 530 ; Campbell v. Stokes, 2 Wend. 137 ; Henry
v. Cuyler, 17 Johns. 469 ; 2 Cowen, 31.
302 SUPREME COURT
Granger v. Warrington.
The opinion of the court was delivered by
Lockwood, J.* This was an action on the case for ma-
licious arrest, imprisonment and prosecution, commenced by
Henry Warrington against Elihu Granger in the Cook circuit
court. The declaration contains four counts, but are all
based on the same facts. They state in . substance that Gran-
ger not '.having any reasonable or probable cause of action,
maliciously caused Warrington to be arrested on a capias ad
respondendem, in ^an action of trespass ; which capias was,
by the procurement of Granger indorsed for bail for $60.
That Warrington was arrested on said capias and imprisoned
for thirty days, and until Warrington procured one James
Moffett to become his especial bail. That said suit] was mali-
ciously prosecuted in said court, and finally tried by a jury,
and a verdict of not guilty, was given in favor of Warring-
ton, and a judgment rendered thereon.
At the May term 1845, of the Cook circuit court, Gran-
ger filed three pleas ; to wit ; 1st, not guilty ; 2nd nul tiel
record ; and 3rd, that Granger had reasonable and probable
cause of action against Warrington. At the same term, the
venue was changed to Du Page, on the affidavit and motion
of Granger.
At the June special term in 1845, of the circuit court of
Du Page county the cause, by consent of both parties, was
continued to the next term.
At the September term of the Du Page circuit court, the
plaintiff below entered a similiter to the defendant's first
plea, and demurred to the second and third pleas ; which de-
murrer was confessed and leave granted to amend the same,
and the amendment being made, the plaintiff filed his de-
murrer to the second plea, in which the defendant joined,
and the court sustained the demurrer. The plaintiff also
again demurred to defendant's third plea, to which there was
no joinder. At that term a jury was impaneled and sworn
to try the cause, and by consent a juror was withdrawn and
the cause continued.
*Caton, J. did not sit in this case.
DECEMBER TERM, 1846. 303
Granger v. Warrington.
At the May term 1816, the defendant moved the court to
dismiss the suit because the original papers did not appear on
file, which motion was overruled, and thereupon a jury was
sworn to try the cause, who found a verdict for plaintiff
below for $500. A motion was made for a new trial, which
was overruled, and defendant below excepted. It appears
from a bill of exceptions taken on the trial, that plaintiff of-
fered the record of a former suit, in which Granger was
plaintiff and Warrington defendant, to show that Granger
had commenced an action of trespass against Warrington,
in which he had been held to bail, and that said suit had re-
sulted in a verdict and judgment for Warrington. To the
reception of this record, Granger objected, on the ground
that it contained facts which cannot be proved by such ev-
idence. The court overruled the objection and permitted
the record to be read in evidence.
It appears from an examination of the record thus given in
evidence, that it contained an affidavit of Warrington, which
he had made of the loss of a bill of sale of a horse, (the ta-
king of which horse from Granger, was the subject of con-
troversy in the suit) in order to lay the foundation for giving
parol evidence of the contents of the bill of sale. Granger
then read his own and the affidavit of one Carlisle Mason to
the court, of the loss of a bill of sale of a horse, given by
Granger to Warrington and Mason, and then offered to prove
by a witness the contents of said bill of sale, to which Gran-
ger objected, but the objection was overruled, and the wit-
ness was permitted to testify and give parol evidence of its
contents. Warrington then called a witness and asked him
what were the circumstances of James Moffett as to property,
in March, 1843 ; to which question defendant below objected
and the court overruled the objection, and the witness an-
swered that all the property he ever knew of Moffet's having
in his possession, was a wagon and pair of horses, which he
parted with in March, 1843. The plaintiff below then call-
ed James Curtiss, who testified that he was prosecuting at-
torney of Cook county in the year 1843. That in the spring
or fall of that year and after the commencement of the tres-
pass suit of Granger against Warrington, Granger came to
304 SUPREME COURT.
Granger v. Warrington.
him and stated that Warrington had taken his, [Granger's,]
horse, out of his, [Granger's,] stable, and that he, [Granger,]
contemplated making a complaint against him before the
grand jury about it. That Granger counselled with witness
as State's attorney, and related to witness various circum-
stances, and witness thereupon told him that witness did not
think that an indictment could be sustained. Witness also
stated that notwithstanding this advice, that Granger made
a complaint before the grand jury, who refused to find a bill.
To the reception of this testimony Granger objected, but the
objection was overruled and Granger excepted.
Plaintiff below then called John Gray who testified that
he was one of the grand jurors of Cook county in the spring
or fall of 1843, and that Granger made a complaint against
Warrington, and that no bill was found. This testimony was
objected to as inadmissable, but the objection overruled and
Granger excepted. Numerous errors have been assigned, but
the following only were relied on :
1st. The original papers in the cause were never transfer-
red from Cook county to Du Page, and consequently, the
cause should have been dismissed.
2nd. There was a trial by jury, while no decision had
been made on the demurrer to defendant's third plea. There
never was an issue on that plea except by demurrer. If de-
murrer decided, then a plea amended and unanswered.
3rd The transcript of the proceedings in the trespass case
should have been excluded. It contained matters improper
to go to the jury. The affidavit of Henry Warrington was
improperly read in evidence.
4th. The testimony in regard to Moffett's pecuniary circum-
stances was irrelevant and incompetent.
5th. The conversation between Granger and Curtiss, the
prosecuting attorney, was a privileged, confidential conver-
sation, and should not have been admitted.
6th. The evidence of Gray, the grand juror, was incom-
petent.
7th. The parol evidence of contract of sale was improp-
erly received.
8th. The court erred in not granting a new trial.
DECEMBER TERM, 1846. 305
Granger v. "Warrington.
The assignment of errors will be considered in their order.
The first assignment questions the correctness of the de-
cision below, in refusing to dismiss the cause in Du Page,
for the reason that the original papers had not been trans-
mitted by the clerk of the Cook Circuit Court to the Du
Page Court. The statute relative to a change of venue
requires that the clerk shall transmit all papers filed in the
cause and appertaining or forming part of the record. But
can a party who has obtained a change of venue, taken sev-
eral step3 in the cause, consented to a continuance, and at a
subsequent term went to trial without objection, make this
motion? We think not. The declaration and other pleadings
and proceedings in the cause must have been before the Du
Page Court in some form, as all the proceedings of the Cook
Court have been sent up in the record. If only copies were
transmitted by the clerk to Cook to Du Page, it only
amounted to an irregularity, which was waived by the de-
fendant below appearing in Du Page and consenting to a
continuance, and subsequently to a trial without objection.
Doubtless at the first term of the Du Page court, if the de-
fendant had objected to proceeding in the cause, without
the original papers, it would have been the duty of the Court
on the application of either party, to have giving a rule upon
the clerk of the Cook court to send the original papers, and
if the court had refused the rule, it would have been error.
The facts in the case of Wright v. Kirkpatrick, 4 Scam. 340,
where this court held, that the dismissal of the case be-
cause the papers were not properly sent from Jo Daviess
county to Adams, were dissimilar in several respects. In
that case it does not appear at whose instance and for whose
benefit the change of venue took place. Nor does it appear,
although the cause was continued on the docket for several
terms, that the defendant had consented to these continu-
ances or had even appeared in court until the term he moved
to dismiss the cause. This court also intimate in that case,
that Wight, the plaintiff, did not take any "step indicating an
intention to proceed in trial of the cause." (a) The decision
(a) Holiday vs. People, 4 Gil . R. 113.
GIL. Ill — 20
306 SUPREME COURT.
Granger v. Warrington.
of the case at bar, does not therefore conflict with the case
of Wight v. Kirkpatrick.
The second error is entirely technical. It appears from
the record that plaiatiff below demurred to the defendant's
$hird amended plea, but to which the defendant did not join.
It is now contended that this is error. If the defendant had
joined in demurrer, soj&s to have [formed an issue in law,
perhaps this would have been fatal. The defendant, how-
ever, by neglecting to join in demurrer, has not placed him-
self in a position to make any objection. He was in default
in not presenting an issue, which the court could decide.
To suffer trivial defects in making up the pleadings, to be
assigned for error in an appellate court, and thus recover
judgments for which have been fairly tried and decided, does
not comport with the ends of justice. What good object can
be answered by reversing this judgment, and sending this
case back for the court below to decide on a plea which this
court sees must be held to be bad. The third plea only
amounted to the general issue, and that plea being filed, the
defendant under it, could give every thing in evidence that
he could if issue had been joined on the third plea. The
cases of Phillips v. Dana, 1 Scam. 493, and Waters v. Simp-
son, 2 Oilman, 570, sustain the positions here advanced.
3d. The transcript of the record in the trespass suit was
correctly received in evidence. Before the plaintiff below
could produce any evidence of malice; it was incumbent on
him to prove by legal evidence the institution of the tres-
pass suit, his arrest in that suit, and the subsequent termina-
tion of the cause. This proof could only be made by the
production of the record or a transcript. If this transcript
had been rejected, the foundation of the plaintiff's action
would have been gone, and he would have been under the
necessity of submitting to a non-suit.
If the transcript contained any matter not pertinent to the
issue on trial the proper course would have been to have
applied to the court below to have prevented the reading in
evidence of the improper matter, or to instruct the jury to
disregard it.
DECEMBER TERM, 1846. 307
Granger v. "Warrington.
The fourth assignment of errors, questions the relevancy
of the testimony in relation to Moffett's pecuniary circum-
stances. What use the plaintiffs below intended to make of
this testimony, cannot readily be perceived. Malice, as well
as want of probable cause, being the gist of the action, can in
general only be made out by circumstances, and considerable
latitude should be allowed in showing collateral circum-
stances that may be remotely connected with the transaction.
In^ this case, however, the bill of exceptions does not profess
to include all the testimony that was given on the trial. It
is then possible, if not probable, that by other testimony not
contained in the bill of exceptions, some pertinency may
have been given to this testimony. As was suggested on the
argument, it may have been proved, that Granger consented
that Moffett's should be received as Warrington's special bail,
notwithstanding Granger knew that Moffett was worth noth-
ing. Such a circumstance, if proved, might have weighed
with the jury in establishing malice. To exclude evidence
from the jury because of irrelevancy, the irrelevancy must be
clear. The law on this subjeci is well laid down in the
Court of Appeals in Kentucky, reported in 1 A. K. Marsh. 3.
That Court say : " There is no question, that in strict pro-
priety, the parties should confine their evidence to the mat-
ters in issue, and that proof wholly foreign to such matters
is inadmissible ; but to sustain an objection merely on the
ground that it is irrelevant, it ought to appear to be so be-
yond all doubt, for it is a settled rule in all cases where the
competency of evidence is doubtful, to admit it to go to the
jury, leaving them to determine as to the weight to which it
shall be entitled, and this rule ought to apply with peculiar
force to a case like the present, where the objection to the
evidence is founded solely on its relevancy." As, then, this court
cannot determine with certainty, that this testimony was irrele-
vant, we think the judgment below ought not to be reversed on
account of its reception, (a)
The ernes tion raised by the fifth assignment of error is one
of great importance in the administration of justice. The
(a) Ante 216.
308 SUPREME COURT.
Granger v. "Warrington.
rule of law applicable to confidental communications be-
tween client and attorney received a thorough investigation
by the Supreme court of Massachusetts, in the case of Hat-
ton v. Robinson, 14 Pickering, 420 and he gave both the
rule and its limitations were correctly laid down in that case.
Chief Justice Shaw, in delivering the opinion of the court,
says : "The rule upon which the plaintiff's counsel in the
present case replied, to exclude all that part of the testimony
of Mr. Ames, which consisted of statements made to him
by Winch, as to his views and motives in making the sale,
upon which the plaintiff founds his title, is that well known
rule of evidence, founded on the confidence which a client
reposes in counsel, attorney or solicitor. By this rule, it is
well established, that all confidential communications be-
tween attorney and client are not to be revealed at any
period of time, nor in any action or proceeding between
other persons, nor after relation of attorney and client has
ceased. The privileges is that of the client, and never ceases
unless voluntarily waived by the client." "But the privilege of
exemption from testifying to facts actually known to the
witness, is in contravention to the general rules of law ;
it is, therefore, to be watched with some strictness, and is
not to be extended beyond the limits of that principal of policy
upon which it is allowed. It is ex tended to no other persons
than an advocate or legal adviser, and those persons whose
intervention is strictly necessary to enable the client and attorney
to communicate with each other, as an interpreter, agenc, or
attorney's clerk. And this privilege is confined to counsel,
solicitors and attorneys, when applied to as such and when acting
in that capacity." Wilson v. Rastell. 4 T. R. 753.
The same Judge, in the course of the same opinion, further
says, in illustrating the doctrine, that "when the matter is
communicated by the client to his attorney for purposes in no way
connected with the object of the retainer and employment
of the attorney as such, then the communication is not
privileged." The Court also say : "The difference is,
DECEMBER TERM, 1846. 309
Granger v. Warrington.
whether the communications were made by the client to the
attorney in confidence, as instructions for conducting his
cause, or a mere gratis dictum."
It is apparent from the principles laid down in the case of
Hatton v. Robinson, that to entitle communications between
individuals to be considered as confidential and privileged,
the relation of client and attorney must exist. The party
must consult the attorney in a matter, in which his private
interest is concerned, ^and make his statements to him with
a view to enable the attorney correctly to understand his
cause, so that he may manage it with greater skill ; or if
legal advice only is wanted, to enable the attorney the better
to counsel him as to his legal rights, (a)
Did, then, Granger employ Curtiss as an attorney, either
to investigate a question of law, in which his private inter-
ests were concerned, or to commence or defend a suit in
which he was a party ? He clearly had no such object. He
had no personal interest in the result at which Curtiss should
arrive, and he did not expect to compensate him for his
advice. Consequently the relation of client and attorney
did not arise ; and consequently 'the conversation was not
privileged from being disclosed by Curtiss as a witness.
Granger can be considered in no other light than a witness
on the part of the people, communicating to the law officer
of the Government, his knowledge in relation to the com-
mission of a supposed crime, and inquring of that officer
whether the facts thus communicated amounted to an of-
fence. We think that no considerations of public policy
require, that the conversation between Granger and the
State's attorney should be regarded as confidential and
privileged. It would be an unnecessary extension of the
rule in relation to confidential communications, and ought
not, therefore, to be allowed, The evidence *of Curtiss was,
consequently, properly received.
Several authorities have been adduced in support of the
sixth assignment of errors. In England, and in several of the
States, grand jurors are sworn to observe secrecy as to all
matters that appertain to their duty as grand jurors, and
(a) Gotra vs. Wolcott, 14 m. R. 90.
310 SUPREME COURT.
Granger v. Warrington.
there would be a manifest impropriety, when the juror has
taken his oath, to compel or permit ^a joror thus situated to
be a witness as to any matter that was given in evidence
before him in that capacity. In this State, however, no
such oath is prescribed by law, and there seems to be no
good reason why the members of a grand jury should not
be called on to testify. In many cases that may readily be
supposed, the members of the grand jury would be the only
witness to prove facts that are necessary* to be established,
and without whose testimony there might be a failure of
justice. In actions for maliciously procuring a party to be
indicted, unless the members of the grand jury can be used
as witnesses, the fact that the defendant was the prosecutor
before the grand jury should not, in general, be proved. Un-
less the defendant had confessed that he was the prosecutor,
the members of the grand jury are the only persons that can
know the fact. Again, suppose, on the trial of a person for
a crime, a witness should swear diametrically opposite to
what he had testified before the grand jury, ought not the
party to be permitted to call on members of the grand jury
to prove this discrepancy, and thus show the witness to be
unworthy of belief ? The reason however, for not receiving
the testimony of grand jurors in England and several of the
States, not exisiting under our laws, we are clearly of opinion
that the grand juror was a competent witness, [a]
In relation to the seventh assignment of errors, we per-
ceive no good objection to the parol evidence of the contract
of sale of the horse. The law is well settled, that parol evi-
dence may be given of the contents of a lost writing, after
the facts of the loss has been Satisfactorily established. The
affidavits of the loss were suffieient for that purpose, [d]
As the whole of the evidence is not stated to be contained
in the bill of exceptions, this court has not the means of de-
termining whether the court below should have granted a
new trial. The refusal to grant a new trial cannot conse-
quently be assigned for ernor. We are therefore, of opinion
that the judgment below inv/st be affirmed, with costs.
Judgment affirmed.
(a) Dormad vs. State Bauk, 2 Scam. R. 24i.
(b) 1 Geenl. Ev. Sec. 252.
DECEMBER TERM, 1846. 311
1'earl v. Wellinan et al.
Frederic Pearl, appellant, v. Hiram B. Wellman et al.
appellees.
Appeal from Tazewell.
A levy on execution'vests in the officer making it, a special property in the
goods seized, for the purpose of a sale for the benefit of the judgment credi-
tor. By such levy, the latter acquires a perfect lien, and his right to proceed
further on his judgment, by prosecuting another suit thereon, or suing out
another execution, is suspended uutil the levy is disposed of, and so far is
considered as a satisfaction of the judgment. But it is different with a mere
seizure of goods on a writ of attachment. In this case, the attaching creditor
merely acquires an imperfect, incohate lien, which, when followed by a
judgment, will have relation to the date of the levy.
A defendant, in order to plead successfully a seizure of his goods on attach-
ment as a ground of defeating a suit upon a judgment rendered in such at-
tachment, should show by his plea, that such goods are specifically bound
by law for the satisfaction of that judgment and still held for that purpose'
by seizure on execution or otherwise.
In an action of debt upon a judgment, among other pleas, one of payment was
interposed, to which tho plaintiff failed to reply: Held, that the defendant
was entitled to a judgment on that plea.
Debt upon a judgment recovered in the St Louis Court of
Common Pleas, in the State of Missouri, brought in the
Trazewell circuit court by the appellees against the appel-
lant, and heard at the April term 1856, before tha Hon. Sam-
uel H. Treat, without the intervention of a jury. A judgment-
was then rendered in favor of the plaintiffs for the sum of
$851.55 debt, and 57.86 damages. From that judgment
the defendant appealed.
The pleadings on the trial below are substantially recited
in the opinion of the court.
H. 0. Merriman, for the appellant.
There is no answer to the plea of nul tiel record.
' 'Plaintiffs bring record," &c. is no assertion that there is such
si] record, nor any replication to plea of payment. There
should have been a replication. Graham's Pr. 765 ; 1 Chit-
ty's PL 619 ; 3 do. 1181 ; 6 Com. Dig. title "Pleader," 378.
This defect is not cured by trial and verdict. A verdict
312 SUPREME COURT.
Pearl v. "Wellman et al.
cures irregularities, but not a want of pleading, and canno
help an immaterial issue : a fortiori, it cannot help where
there is no issue at all. 6 Com. Dig 141, E. 38 ; 1 Chitty's
PI. 713, 721, 722. There was no trial of the plea of nul
tiel record. The objections now made to third plea are
1. That it is a matter of abatement only ;
2. That the plea professes to answer the whole, and in
reality only answers but part of the declaration, in not say-
ing that the property equalled in value the "debt, interest
and costs ;"
3. It does not show what are the laws of Missouri ; and
4. It does not show its detention.
Neither of these objections are well taken.
1. It is not matter in abatement but in bar of the action.
1 Chitty's PI. 506 ; 3 do. 994 ; Ladd v. Blunt, 4 Mass. 402 ;
Green v. Burke, 23 Wend. 501. The plaintiff never had a
cause of action on the judgment not due.
2. The plea does not answer the whole declaration.
3. The laws of Missouri are not in issue. The effect of a
seizure under the jadgment depends upon the common law,
and the plea alleges that it was a process issued in the case
in which judgment sued on was recovered. It admits, and
plaintiff claims jurisdiction over the case, &c. The seizure
is bv virtue of the writ, and the writ explains itself.
4. It shows a sufficient detention. The levy is prima
facie satisfaction, and if anything has destroyed the force of
the levy, it should be shown by replication. Ex parte Law-
rence, 4 Cowen, 417 ; 7 do. 21 ; Green v. Burke, 23 Wend-
501. Do the facts stated in the third plea amount to a de -
fence? A levy under an execution upon personal property
is a satisfaction to the extent of the value of the property
seized. Why ?
1. Because it is unknown how, for the judgment may be
satisfied by sale of the property in custodia legis ;
2. The sheriff acquires a special property in goods seized,
and may maintain trespass, trover, &c. Ladd v. Blunt, 4
Mass. 402; Bayleyv. French, 2 Pick 586 ; Greene v. Burke,
23 Wend. 499, 501 ; 14 do. 460 ; 3 Missouri, 353.
DECEMBER TERM, 1846. 313
Pearl v. WelJman et al.
The dictum in Ladd v. Blunt is overruled.
Personal property seized under attachment is in custodia legis,
subject to the judgment and the satisfaction of the debt, con-
demned in satisfaction by the judgment. The rights of the
plaintiff and the property of the sheriff therein, after judgment
at least, are the same in every respect, as if seized under execu-
tion, and the rights acquired relate back by operation of law,
and the lien attaches from the date of the levy. Watson v.
Todd, 5 Mass. 271 ; Vinton v. Bradford, lb, 114, 116 ; Ladd
v. North, 2 Pick. 514, 518 ; Fairfield v. Baldwin, 12 Pick.
388 ; Brownell v. Manchester, 1 do. 234 ; Badlam v. Tucker,
lb. 389 ; The People v. Cameron, 2 Gilm. 471 ; Martin v.
Dryden, 1 do. 213.
The principle is true in whatever way the property is seized
lawfully to pay debts. It extends to distress. Green v. Burke,
23 Wend. 501 ; Bradby on Distresses, 130 ; 1 Burrows, 417.
There is no one principle applicable to levies under executions,
that does not apply with equal force to a levy under an attach-
ment, especially after judgment. The case in 5 Gill k Johns.
102, 109, seems to have been decided upon the principle that a
suit upon the appeal bond might be prosecuted notwithstanding
the levy, 'and regarded the conditions of the bond as forming
an exception to the general rule. But a judgment cannot be
sued on while the levy is pending. 23 Wend, before cited.
T. J. Littell, 0. H. Browning & N. Bushnell, for the appel-
lees. The following written argument was filed by N. Bush-
nell :
1. The record offered in evidence was properly authentica-
ted. Ferguson v. Harwood, 2 Peters' Cond. R. 548.
2. The record offered in evidence is not preserved in the
bill of exceptions, but only the certificates authenticating it.
The court, then, have no means of determining whether the ev-
idence did, or did not authorize the judgment rendered below.
But as the record, though not preserved in the bill of exceptions,
is copied into the record in this case I will add, that although
the suit in St. Louis was by attachment, yet the defendant
314 SUPKEME COURT.
Pearl v. Wellruan et al.
was in fact personally served with process, and afterwards ap-
peared in and defended the action. In such a case, the jungment
in an attachment suit is personally binding on the defendant,
and the record is conclusive evidence of the debt, in a suit upon
it in another State. Mayhew v. Thatcher, 5 Peters' Cond. R.
84.
3. The third plea was bad, and the demurrer to it was
properly sustained. The plea is a special plea of payment.
The payment is made to consist in the fact, that property
"worth the full amount" of the debt mentioned in the attach-
ment writ was seized on that writ, and that the plaintiff had
never returned the same to the defendant. It is difficult to
ascertain on what principle the mere attachment of personal
property, can amount to the payment of the debt on which
it was attached. It is a mere incohate lien. It is for the
time being in custodia legis. The sheriff or other officer who
levies the writ acquires a special property in the goods, for
the purpose of securing them to answer unto a future de-
mand, which may or may not be perfected against it, but for
no other purpose. ( Watson v. Todd, 5 Mass. 271, ) while the
debtor retains his general property in the goods attached,
which is not affected or changed until after a levy and sale
on execution, [ Blake v. Shaw., 7 do. 505 ; ] and he may, if
he can obtain peaceable possession of them, sell and deliver
the same to a purchaser, [Fettyplace v. Dutch, 13 Pick.
388, ] while the attaching creditor acquires no property in
the goods whatever ; [ Ladd v. North, 2 Mass. 514 ; Perley
v. Foster, 9 do. 112 ; ] nor does the creditor thereby acquire
any right to the money to be derived from a sale of the at-
tached properly. For the duty of the attaching officer is to
keep the goods, not to sell them, and if he is ever authorized
to sell, it must be in pursuance of some future order or pro-
cess of the court made in pursuance of law. Whether any
such order or process has been made or issued by such
court in Missouri — whether in fact, by the Laws of Missouri,
the attached property is to be specifically sold to satisfy the
judgment in the suit, or whether there, as in many other
states, the attachment is simply to secure the appearance of
DECEMBER TERM 1846. 315
Pearl v. Wellman et al.
the party, and judgment is renderedgenerally against the defen-
dant, and to be satisfied out of his general effects, does not ap-
pear by this plea. If the lien of the plaintiff was perfected —
if the plaintiff has the right and the power to sell the attached
property on execution to satisfy that judgment, it was the duty
of the defendant to have shown it, to bring the case within the
principles applicable to the case of the levy of an execution, in
which the execution creditor has a present unconditional right and
power to have the property sold, and a present right to the money
derivable from the sale, and these facts not appearing cannot be
presumed to exist.
Whether a plea might not be drawn which would abate a suit
founded on a judgment in attachment, till the goods attached
were legally disposed of, is a question not now before the court.
The attachment in this case is not pleaded in abatement, nor
as a temporary bar to this suit, but as a bar to 'any suit at any
time, (1 Chitty's PI. 481, 502,) as a full, perfect and absolute
discharge of the judgment. And the real question is, -whether the
mere levy of an attachment, of itself, without more can amount
to a payment. Whether a payment can arise from a transaction
in which the debtor still retains the full ownership of the goods,
and the creditor acquires no present interest, either in the property
out of which the payment is said to issue, or in the proceeds of
it. The statement of the proposition carries with it its own re-
futation. To call this payment, is to make words important,
things of no consequence.
It is often said, that the levy of a fieri facias execution on
goods sufficient to satisfy it, is a payment pro tanto, or in
other words, suspends the right of action or of execution
till the goods are disposed of. But I am not aware of any
decision, which shows in what way the defence must be set
up, nor the precise facts necessary to be averred in a plea
to a suit on the judgment. But from the fact that all the
cases show that it is a temporary defence only, an answer
to a particular suit, and for a particular time, and not a bar
to a suit generally, it comes clearly within the principle of
316 SUPREME COURT.
Pearl v. Wellman et al.
a plea in abatement, and not of a plea in bar, and as such,
ought probably to be pleaded.
But what facts are essential to the validity of the plea in
whatever pleaded ? The mere levy of an attachment on
goods, 1 cannot of itself constitute a payment o! the debt.
This cannot be said even of the levy of an execution [Sac-
cer v. Walker's Executors, 5 Gill. & Johns 102, 109 ; Green
v. Burke, 23 Wend. 490,] a case much stronger than the
instance of attachment, in which we have seen the debtor
retain his property in the goods, while in the case of a
levy of an execution, the lien being a perfect one, it is said
that by this " lawful seizure, the debtor has lost his property
in the goods ; " [Ladd v. Blunt, 4 Mass. 402 ;] so that, ad-
mitting the seizure on attachment to be analagous to a sei-
zure on execution, it does not make a payment, but merely
suspends the right to sue ; the principle is suspension, not
payment. Of this, although there is a great want of pre-
cision in the books, in reference to this node of payment
quasi payment, and payment pro tanto, an attentive exam-
ination of the case will clearly demonstrate. Whether, then,
at the time this suit was commenced, and to which time the
plea must refer, the seizure of these goods should be held to
suspend our right of action on the judgment, must depend
upon whether they were still held in lawful cnstody, subject
to the satisfaction of that judgment. For if the lawful sei-
zure, in the first instance, orginated the bar or suspension of
the right to sue, then the continuance of such bar or suspen-
sion must depend on the continuance of such lawful seizure.
If from any legal cause the goods are no longer answerable in
the suit in which they were attached there is no longer
any just reason for a further prohibition against seeking
other satisfaction of such judgment. The suspension . of our
right must then depend upon the fact, that at the time this
suit was brought, the goods attached were still answerable
in the former suit. The defendant who insists on this sus-
pension, must, according to every principle of pleading, aver
in his plea every fact necessary to show that our right to sue
was in fact suspended, to wit that at the time this suit
DECEMBER TERM, 1846. 317
Pearl v. "Wellman et si.
was instituted, the goods attached were still legally held subject
to the former judgment.
The counsel for the defendant seemed fully aware of this
difficulty, and attempted to meet the difficulty by alleging,
that the "plaintiff hath never returned the goods to the de-
fendant." But because the plaintiff hath tnever returned
the goods, does it follow that they remain still undisposed
of and legally held subject to the judgment? It does not
appear from the plea that they were lawfully attached — that
they weie ever legally subject to attachment. But admit-
ting they were once in lawful custody, might not the officer
in whose custody the goods were, and who alone could re-
turn them, have returned them, even if the plaintiff failed to
do so? May not the property, though attached, have been
taken from the custody of the attaching officer on a prior
lien? May not the vendor, finding them attached, have
exercised his undoubted right of stoppage in transitu? May
not the property have perished by natural decay, without
the fault of any one, and without the existence of any law
authorizing the sale of it, to prevent such an occurrence —
and the court cannot know^ what the law of Missouri is on
this subject ? May not the defendant even have obtained
peaceable possession of the goods, and used them for his
own benefit ? Yet if any one of these things, or of many
other suppositions which might be made, is true, then at the
time this suit was commenced, the goods were not held sub-
ject to the judgment, the judgment was not paid, and there
could be no pretence that our right of action was suspended.
Every one of these facts may be true, and the iacts stated
in the defendant's plea be true also. As it is the part of the
defendant to aver all facts which constitute his defence,
these facis, and all other facts inconsistent with it, should
be negatived in his plea. This should be done, not by a
negative averment, denying every supposa-ble fact inconsis-
tent with his defence, but by an affinitive averment, that
at the time this suit was brought, the goods were still undis-
posed of, and held subject to the judgment. This averment
would negative every fact inconsistent with the main fact
318 SUPREME COURT.
Pearl v. Wellman et al.
constituting the defence — that our right of action was still
suspended. It is an averment required on every principle
of pleading, and the only direct authority I have been able to
find on this point, sustaines the necessity of making it. Mount-
ney v. Andrews, Croke Eliz. 237. That was on scire facias
to revive the judgment. The plea was in substance, that the
plaintiff had, by the former execution, levied upon certain goods
and chattels of the defendant, and still detained them. If the
fact that the detention of the goods constituted a necessary part
of the defence in that case, it would be equally so in this.
The principle of the two cases cannot well be distin-
gushed.
So much then as to the point of the suspension of our right
of action. If we are correct, then the plea in question is sub-
stantially defective, in not showing that the goods were still
undisposed of, and held subject to the original judgment.
If a payment in fact is relied on, then it would be neces-
sary for the same reason, and to show a complete bar, to
aver that the goods had in fact been disposed of on that judg-
ment, and that the proceeds were sufficient to pay the same.
For whatever may be the value of the goods attached, the
extent of the payment must depend, not on that value, but
on the amount brought at the sale ; and no payment in
fact could possibly be made, till the goods were thus dis-
posed of. For then only, could the creditor acquire a present
right to money derivable from the sale, and in which alone
the payment could be made. If, then, a payment in
fact is insisted on, then the plea is substantially defective,
in not averring the sale of the property and the amount of
it.
There are several other minor, but equally fatal objections
to the plea.
1. It is in form a plea to the whole declaration, but in
fact answers but a part of it. One cannot but observe the
studied language of the plea, to evade a full and direct
reply to the plaintiffs' demand. The plaintiffs sue on a
judgment, for $851.55, debt, and $500 damages. The sub-
stance of a plea of payment, whether general or special,
DECEMBER TERM 1846. 319
Pearl v. Wellman et al.
consists in a substantive averment, that the debt and damages in the
plaintiff's declaration mentioned, are fully paid. Instead of this,
however, the defendant simply avers a levy by attachment, on pro-
perty equal in value to the sum specified in the writ, and which sum,
as shown by the plea, was $813.28, that being the only sum specifi-
ed therein. If the defendant, in his plea, intended to aver that the
value of the attached property was equal to the " surn specified" in
the writ, together with the interest and costs of suit, it would have
been easy to make that averment, either by inserting those words in
his plea, or by averring — what would be the usual averment for such
a case — that the property was of value equal to the judgment sued
on — by pleading to the demand now sued on the judgment, and not
to the writ which was merely preliminary and incidental to that de-
mand. The plea is hence equivocal and evasive ; in form, a plea to
the whole action, it is, in substance, a plea to but part ; and to es-
cape detection, the pleader has employed doubtful expressions, and
given to the plea a vague and unusual form. It is a proper case for
the application of the rule, that equivocal language shall always be
taken most strongly against the pleader.
2. All the cases show that where an attachment or levy of execu-
tion on property is relied on as a defence, the averment must be that
the property thus seized must be sufficient to satisfy the debt. (23
Wend. 490, and the numerous cases there cited.) Now, in this
case there is no such averment. The only averment is, that the pro-
perty was in value equal to the sum specified in the writ. The va-
lue of property has little to do with the amount it will bring on sale.
If there has been a payment in this case, it is because property
enough to pay the debt on sale has been seized and detained ; and if
the property seized, whatever its value, was insufficient for this pur-
pose, then a payment thereby was impossible. The business of
making out the payment devolves on the defendant. That the pro-
perty was in value only equal to the debt, is the strongest possible
evidence that it would not have sold on execution for a sum equal to
the debt. As the debt was to be paid by a sale, the averment
should have shown, that the property was sufficient to pay the debt
320 SUPREME COURT.
Pearl v. Wellman et al.
in due course of law, by some apt term. The evasiveness and
insufficiency of the plea in this particular is hence another
and sufficient ground for sustaining the demurrer to it.
The opinion of the court was delivered by
Thomas. J. This was an action of debt commenced in the
Tazewell Circuit Court, by the appellees against the appel-
lant, on a judgment of the Court of Common Pleas, of the
county of St. Louis, in the State of Missouri.
The defendant pleaded,
I. Nul tiel record, to which the plaintiffs, by their attor-
ney, say: " plaintiffs here bring record, &c. Jones."
II. Payment, to which there was no replication.
TTT. That said judgment was recovered (if at all) in a cer-
tain action by attachment, instituted in the St. Louis Court
of Common Pleas, by the appellees against the appellant, in
which said plaintiffs caused to be issued out of the office of
the clerk of said Court, a certain writ of attachment, dated
&c, directed to the sheriff of St. Louis county aforesaid,
commanding him, among other things, to attach the said de-
fendant, by all and singular his lands and tenements, goods
and chattels, moneys, credits, and effects, or so much thereof
as should be sufficient to secure the sum of $813.28, with
interest and costs of suit, in whose hands the same might be,
in his bailwick ; and that under and by virtue of said writ,
said sheriff did attach and levy upon certain property of
said defendant, to wit, &c. and that said property so seized
and levied upon as aforesaid, was then and there worth the
full amount of the said sum specified in said writ of attach-
ment ; and that the same has not by said plaintiffs been re-
stored to said defendant, and that said judgment in said
declaration mentioned, was, if any such there be, recovered
in said action, and the same is, in manner aforesaid, satis-
fied, &c.
To this plea the plaintiffs demurred generally. Their de-
murrer was sustained by the Court ; and therefore a trial
being had by the Court, a judgment was rendered for the
DECEMBER TERM 1846. 321
Pearl v. Welliuan et al.
plaintiffs for $851.55 debt, and $54-86 damages, together
with their costs.
That judgment the defendant brings in to this court by
appeal, and asks its reversal for the following grounds as-
signed by him for error, to wit :
1. That the circuit court sustained the demurrer to the
third plea.
2. That the record of the judgment of the St. Louis court
of Common Pleas was admitted in evidence; the same not
having been properly authenticated.
3. That the court rendered judgment against^ the defend-
ant upon the evidence produced.
4. That judgment was rendered upon insufficient plead-
ings, there being no answer to defendant's first and second
pleas.
The question involved in the first assignment of error is
as to the validity of appellant's third plea, whether the facts
therein alleged warranted its conclusion that the judgment
sued on had been satisfied?
In support of the affirmation of this proposition, the ap-
pellant insists, that a seizure of goods on attachment stands
on the same footing as if made by levy on execution, and
consequently, that such seizure may be pleaded in bar of
any suit upon a judgment rendered in such attachment.
This position, however, is wholly untenable.
The difference in the operation of levies on execution and
on attachment, is deducible, as a necessary result, from the
difference in the nature and destined offices of the two writs.
The one is final, the other mesne process ; the one is "the
life of law," and operative to put the creditor in posses-
sion of the fruits of his judgment, the other as a mere means
of giving the court jurisdiction to proceed to judgment
against the debtor or his property.
A levy on execution vests in the officer making it, a spe-
cial property in the goods seized, for the purpose of a sale
thereof, for the benefit of the judgment creditor, while it
confers upon such creditor, a present unconditional right to
have such sale made, to have the money derivable there-
gil. in — 21
322 SUPREME COURT.
Pearl v. Wejlman et al.
from. By such levy, therefore, the plaintiff acquires a per-
fect lien. Hence the doctrine established by numerous
decisions and recognized by this court, in Gregory v.
Stark, 3 Scam. 612, that the levy of a fi. fa. on per-
sonal property will, until disposed of, suspend the plaintiff's
right to proceed further on his judgment, either by prosecu-
ting another suit, or suing out another execution, and that
such levy will consequently be, for such purpose, considered
as a satisfaction of the judgment.
But such cannot be the consequence of a mere seizure of
goods on attachment. The attaching creditor thereby merely
acquires an imperfect, inchoate lien, which, when followed
by a judgment, will have relation back to the date of the
levy. Martin v. Dryden, 1 Gillman, 213. The goods
attached, for the time being, or in custodia legis, the officer
levying the writ having a special property in them for the
purpose of securing them to answer to a further demand,
which may or may not be perfected against them, but for no
other purpose. Watson v. Todd, 5 Mass. 271. While the
debtor retains his general property in such goods, which is
not affected or changed until after a levy and sale on execu-
tion. Blake v. Shaw, 7 do, o05. And he may if he can ob-
tain peaceable possession thereof, sell and deliver them to
the purchaser, as against every one except the attaching
creditor. Fettyplace v. Dutch, 13 Pick. 388. And the at-
taching creditor has no property whatever in the goods.
Ladd v. North, 2 Mass. 514 ; Perley v. Foster, 9 do. 112.
Nor does the creditor thereby acquire any right to the money
to be derived from a sale of the attached property, unless
such sale be authorized by some further order or process of
the court, made in pursuance of law. Until then, the duty of
the officer is to keep the goods, not to sell them.
If the seizure of goods on attachment operated like a levy
on execution, its effect would be to defeat the very object of
its use, the rendition of a judgment against the debtor, or
his goods. While relied upon as giving the court jurisdic-
tion for the purpose of subjecting the goods attached to sale
for the payment of the debt sued upon, the seizure of the
goods might as a consequence of such doctrine be pleaded
DECEMBER TERM 1846. 323
Pearl v. Wellman et al.
as a payment of that very debt, and thus be made to defeat
a judgment therefor. The statement of the proposition
carries with it its own refutation.
This court, at its present term, has held that the pendency
of a prior suit by attachment , on which goods have been
seized, may not even be pleaded in abatement of a subse.
quent suit in personam, against the debtor for the same
debt. Branigan v. Rose, ante, 123.
But the doctrine contended for is unsound for another rea-
son. The reason of the doctrine established by the courts,
that a levy on personal goods, by virtue of an execution, is
operative to stay further proceedings, by suit or execution,
until such levy is disposed of, is, that the further aid of legal
process is unnecessary for the purpose of enforcing the rights
of the creditor, until the operation of that already issued in
his behalf shall have been exhausted. That to permit further
process to issue under such circumstances, would be to make
the process of the law not beneficial to the creditor, but
vexatious and oppressive to the debtor. Consequently, a de-
fence based upon the levy of an execution, must show it to
be a subsisting levy when pleaded. Such is the doctrine
held in the case of Mountney v. Andrews, Cro. Eliz.237,
to which all the cases on this subject go back. In that case,
the language of the plea was, that "the- sheriff hath taken
divers sheep and yet detaineth them." And in the case of
Gregory v. Stark, 3 Scam. 612, the validity of such a de-
fence is admitted in cases where the levy is still subsisting,
and the result of a sale has not proved the insufficiency of
the proper ty levied on to satisfy the judgment.
The mere allegation of a seizure of goods on attachment,
shows no subsisting lein upon such goods when pleaded.
The special property of the officer levying the writ may have
been divested, and the plaintiff's inchoate lein defeated by
many means after the seizure of the goods, and if so, there
can be no good ground for refusing to the plaintiff the fur-
ther aid of the courts and their process to enable him to
enforce his rights ; therefore, a defendant relying upon a sei-
zier of his goods on attachment, as a ground of defeating a
suit upon the judgment rendered upon such attachment,
324 SUPREME COURT
Pearl v. "Wellruan et al.
should in order to bring himself within the rule above stated,
show by his plea, that such goods are specifically bound by
law ' for the satisfaction of such judgment, and still held for
that purpose, by seizure on execution or otherwise.
Upon the exhibition of such a state of facts, the defendant
might, in such a case, well insist that the plaintiff's right of
proceeding further against him should be suspended, until
the execution of the remedy already progressed beyond its
mere incipiency, by the seizure and detention of his goods.
He would thus show a satisfaction sub modo ; a temporary bar
to judgment or execution whose extent would be limited by
the result, ripening into a full and perfect satisfaction of
the judgment, if the proceeds arising from the sale of the
goods attached should be sufficient in amount for that pur-
pose: if not, furnishing a satisfaction pro tanto, and leaving
the plaintiff at liberty to perfect his remedy by further pro-
ceedings. Further than this we cannot go, but in this con-
nection adopt the language of the Supreme Court of New
York in the case of Green v. Burke 23 Wend. 490, that
"there are so many ways invented by which goods may be
got from the sheriff; some times by fraudulent claims, some-
times by prior leins, and even by his own negligence ; that
it behoves the courts to look into the rule now purged upon
us as working by a sort ot magic, to cut a man off from his
debt without the show or pretence of satisfaction. "(a)
Tested by these principles, the plea under consideration
will be found wholly defective in not showing, that by the
laws of Missouri, the attached property was specifically
liable to be sold for the satisfaction of the judgment to be
obtained on the attachment, and that they were, when the
plea was filed, still legally held for that purpose. (6)
For anything that appears from the plea the process of
attachment may be used in Missouri simply for the purpose,
of securing the appearance of the defendant ; but if not, still
the plea does not show a seizure by the sheriff, and he alone,
and not the plaintiff's, had the custody of the goods, and could
control their possession. Consequently, the allegation that
the said goods have not been restored by the plaintiffs to the
defendant does not exclude the conclusion that the sheriff'
(a) Montgomery vs. Wayne, It El. R. 374 ; U. S. vs. Dashiel, 3 Wal. U. S. R. 699
(6) Yourt vs. Hopkins, 24 m. R. 326.
DECEMBER TERM 1846. 325
Pearl v. Wellman et al. .
may have done so or that said goods, by some -other means,
had been discharged from the operation of the plaintiffs' lien,
if they had any.
The Circuit Court did not err in holding the authentica-
tion of the record sued on sufficient, and admitting it in
evidence, the defendant's objection to the contrary notwith-
standing, as alleged by the second error assigned. Tha*
record, as appears by reference to the bill of exceptions
taken on the trial, was proved by the attestation of the clerk
of the court rendering the judgment, and the seal of the
Court annexed, together with the certificate of the sole
Judge of that court that the said certificate was made by
the proper officer, that said attestation was in due form, &c •
This was in strict compliance with the requisition of tl\e
Act of Congress in such case made and provided.
The ground on which the appellant bases his third assign-
ment of error, to wit, that the evidence produced on the
trial was insufficient to warrant the judgment rendered upon
it, might, if true in point of fact, have constituted a sufficient
reason for the granting of a new trial in the court below
but in the shape in which it is now sought to be presented,
is not examinable in this court. To have made it so, a mo-
tion should have been made in the' Circuit Court for a new
trial, and then such motion being overruled, the action of
the court thereon might have been assigned for error,
Barnes v. Barber, 1 Gilman, 401.
But this assignment, if inquirable into here is not sus-
tained by the record. The bill of exceptions does not pro-
fess to exhibit all the evidence here on the trial, but
nevertheless does show enough to warrant the rendition of
the judgment of the Court now complained of.
The only question remaining to be disposed of, is one of
pleading, and it is p erhaps to be regretted, that in deter-
mining it, as we must do, upon long established and well
settled principles of law. the benfit growing out of the re-
versal of a judgment, appearing from the evidence in the
cause to have a good and sufficient foundation in law and
fact, should be made to enure to a defendant who is not
sVown by the record to have had any valid and sufficient
326 SUPREME COURT
Pearl v. Wellman et al.
defence to the suit against him, if put upon his proof of such
defence by the pleading of his adversary. But our province
is to expound the law as we find it, and not to give to it an
attribute of flexibility which it does not possess, for the pur-
pose of varying results. Then, without an entire departure
from the line of our duty, we cannot say otherwise than that
one of the defects in pleading complained of in the fourth
assignment of error does exist, and is such as imperatively to
require a reversal of the jugdment.
This defect |is not found in the replication to defendant's
plea of nul tiel record. That is substantially sufficient. To
such a plea the plaintiff should reply, "there is such a rec-
ord," and conclude his replication "prout patet per recor-
dum." 6 Com. Dig. title, "Pleader," 378; 1 Chitty's PI. 619.
The omission of such conclusion is cured by verdict, and will
not affect the judgment. Rev. Stat., Ch. V.§ 9; 1 Chitty's
PI. 723.
But the defendant's plea of payment is wholly unanswer-
ed, and this defect is entirely incurable by and intendment
of law.
It is not the case of a defect in matter of from, which is
cured by verdict. 6 Com. Dig. 141. Nor of a party at-
tempting to take advantage 'of his own defective pleading,
which he may not be permitted to do. lb. ; Waters v. Simp-
son, 2 Gilm. 577. Nor does it prevent the question some-
times assuming a doubtful aspect, as to the extent to which
defects in an insufficient bar or replication will be cured by
verdict ; but the defendant interposes a plea which complete-
ly answering the declaration entitles him, if successful on if,
to judgment in bar of the action. Dana v. Bryant, 1 Gilm.
104. As to this plea, there was no controversy. The mat-
ter set up by it not being denied, the defendant was entitled
to judgment on it, and the court consequently erred, as well
in proceeding to the trial of the remaining issue in the cause,
us in rendering judgment against the defendant. For this
error the judgment will be reversed with costs, and the
cause remanded to the circuit court of Tazewell county for
further proceedings on a venire de novo.
Judgment reversed.
DECEMBER TERM, 1846. 327
Sans v. The People.
Robert Sans, impleaded with John P. Jordan, plaintiff in
■ error, v. The People of the State of Illinois, defend-
ants in error.
Error to Scott.
A capias was issued against one indicted, and an order of court indorsed there-
on directing the sheriff to take bail in the sum of one hundred dollars. An
arrest was made, and a joint and several recognizance for his appearance,
with surety under the penaty of fifty dollars, executed and delivered to the
shsriff. The sheriff, perceiving that the penalty was not in compliance with
the order of court, returned it to the principal, who changed it to the sum of
one hundred dollars. A few days after, the sheriff, having the recognizance
in his hand, saw the surety, informed him of the alteration, and asked him if
he would stand on the bond as it was then, to which he replied in the affir-
mative, and that he would as soon be his security for one hundred as for fifty
dollars. The principal not appearing as required by recognizance, the same
was forfeited and a sci. fa. issued against him and his surety, which was
served on the surety and returned nihil as to the principal. The surety
pleaded non est factum, and verified the same by affidavit. The facts in re-
gard to the alteration were proved at the trial. The court instructed the jury
that " by the alteration, the bond was rendered void, but, in the opinion of
the court, the subsequent assent of Sans, (the surety,) cured this defect and
rendered him liable : Held, that the instruction was erroneous, the bond be-
ing rendered void by the alteration and a nullity, it could not be made val-
id by the subsequent assent of the surety.
The object of a sci. fa. on a recognizance is, to have execution according to tha
lorm, force and effect of the recognizance. Against the issuing of such ex-
ecution, the party summoned may show for cause, that the principal in the
recognizance has complied with its conditions, that the debt is paid, that
there is no such record, &c. ; but he cannot be permitted by plea, or other-
wise, to change its nature or effect. If the recognizance is joint and several,
and a sci. fa. is issued against the several cognizors in proper form, is served
on one or more, and the writ returned "nihil" as to the others, judgment
may be rendered against those served, that execution issue against them and
each of them according to the conditions of the recognizance.
The writ of sci. fa. upon recognizances was giveu by the Statute of "Westmin-
ister 2, 13 Edw. 1, and this statute being adopted in this State, a return of
two writs "nihil" upon a sci. fa. issued on such instruments, is equivalent
to actual service, and will'justify]the award of execution against those of the
cognizors who cannot be personally served with process, (a)
The doctrine laid down by this court in the case of McCourtie v. Davis, 2
Gilm. 29S, which was a sci. fa. against a garnishee in attachment, is re-
affirmed ; but the case of Alley v. The People, 1 Gilm. 109, so far as it con-
flicts with the doctrine of the present case, is overruled.
Scire Facias upon a joint and several recognizance, in
the Scott circuit court. The cause was heard before the
Hon. Samuel D. Lockwood, and a jury rendered a ver-
328 SUPREME COURT,
Sans v. The People.
diet in favor of the People for penalty mentioned in the
recognizance.
The evidence, pleadings and instructions are fully stated
by the Court.
M. McConnnell, in support of the assignments of error,
cited Alley v The People, 1 Gilm. 109-12; Rolle's Abr. 29(»
pi. 5; Dickens' case, 6 Cowen, 59, 60; Cleaton v. Chambliss,
B^Rand. 86; 1 Espinasse, 81; 5 T.R. 537.
D. B. Campbell, Attorney General, for the People.
A bond may be altered by consent of parties. 9 Cranch,
28; Dickens' case, 6 Cowen, 59.
The judgment against Sans was properly rendered, he
having been served with the sci. fa., although Jordan was not
served, or two returns of ''nihil" as to him. 2 Pirtle's Dig.
315; Ibid. 366; 2 A. K. Marsh. 131; 1 Bibb, 181; 2 Littell,
286; 3 Blackf. 337; 1 do. 202.
H. Dusenbery, Circuit Attorney, filed the following brief :
1. It is insisted that the authorities referred to by the
counsel for plaintiff in error do not apply to this case.
The Court below had jurisdiction, gave correct instruc-
tions to the jury, and properly entered the judgment against
the party served. Rev. Stat. 413, § 2; United States
v. Cushman, 2 Sumner, 310; Chinn v Commonwealth. 5 J J.
Marsh. 29; Burd v. Colgan, 2 Littell, 284; Lucket v. Austin,
4 Bibb, 182; Madison v. Commonwealth, 2 A. K. Marsh. 131.
2. The plaintiff in error consented to the alteration made
in the bond, and he cannot therefore take any advantage of
such alteration.
A material alteration or interlineation does not render a
bond void, if it be made by the consent of parties; whether
the alteration or interlineation be made before or after exe-
cution, it is not avoided, and such consent may be proved
by parol. Sparks v. United States, 9 Cranch, 23; Wolley v.
Constant, 4 Johns. 54; S. P. Kerwin's case, 8 Cowen, 118
Camden Bank v Hall 2 Greenl. 583; Warring v. Wil-
liams, 8 Pick. 322; United States v. Adm'rs of Hilligas,
DECEMBER TERM, 1846. 329
Sans v. The People.
3 Wash. C. C. R. 70 ; Miller v. Steward, 9 Wheat. 680, 5
Peters' Cond. R. 727.
The opinion of the court was delivered by
Purple, J.* John P. Jordan was indicted at the May
term 1845, of the Scott county circuit court, for obtaining
money under false pretences. A capias was issued for his
arrest, upon which the sheriff was directed to take bail in
the sum of one hundred dollars, for his appearance at the suc-
ceeding term. Jordan was arrested, and applied to Robert
Sans to become security for his appearance at court. A
joint and several recognizance was drawn up, with a penalty
of fifty dollars, and signed by Jordan and Sons, ^and deliver-
ed to the sheriff. Upon receiving it, the sheriff noticed that
the penalty was not sufficient in amount as required by the
order of the court. Whereupon, Jordan, as it appears, in
the absence of Sans, altered the penalty, by striking out $50
and inserting $100. A few days after, the sheriff, having
the bond or recognizance in his possession, and holding it in
his hand, saw Sans, told him of the alteration, and asked him
if he would stand upon the bond as it was then. To which
Sans replied that he would ; that he would as soon stand
Jordan's security for §100 as $50.
At the October term succeeding, Jordan not appearing to
answer to the indictment, his recognizance was forfeited,
and a scire facias issued against him, and Sans, his security.
Process was served on Sans, and returned nihil as to Jordan.
Sans appeared, and pleaded non est factum, and verified
his plea by affidavit. On trial, the facts before recited in
relation to the alteration of the recognizance appeared in
evidence.
The counsel for Sans requested the court to instruct
the jury .
"That the alteration of the bond from $50 to $1C0, under
the circumstances, rendered it void, and being a nullity,
the subsequent verbal assent of Sans, as stated in the evidence,
did not make it valid."
* Wilson, C. J. and Justices Lockwood and Young did not sit in this case.
330 SUPREME COURT.
Sans v. The People.
This instruction was refused, and the court instructed the
jury that
"By the alteration, the bond was rendered void, but, in
the opinion of the court, the subsequent assent of Sans
cured this defect, and rendered the plaintiff liable." Sans
excepted to the opinion of the court, and tendered his bill
in the cause. The jury returned a verdict against the plain-
tiff, upon which judgment was rendered by the court.
The plaintiff now assigns for error the decision of the
court in its instruction to the jury, the witholding of the
instruction asked, and the rendition of the judgment against
Sans alone upon a return of one nihil only against Jordan.
The question arising on the last point made will be first
considered. It is deemed important to the public interest
and espeically so to the due administration of criminal juris"
prudence, that the law applicable to the writ of scire facias
upon recognizances should be settled and understood. The
writ is of ancient origin. As a common law process in real
actions, it was much used prior to the thirteenth century and
in the time of Edward I. during whose reign it was extended
to several species of actions personal in their character.
As defined, it is a judical writ, founded upon some matter
of record as judgments, recognizances and letters patent, on
which it lies to vacate, set them aside or enforce their exe-
cution.
Although it is a judical writ, or writ of execution, yet it
is so far in the nature of an original action, that it may be
pleaded to by a defendant. 6 Bacon's Abr. 103. The same
author on the succeeding page says, that" it has been doubted
whether this writ lay at common law ; but this doubt arose
for want of distinguishing between personal and real actions.
At common law, if after judgment given or recognizance
acknowledged, (in personal actions,) the plaintiff sued out
no execution within the year he was driven to his original
upon the judgment, and the scire facias in personal actions
was given by Statute of West. 2 13 Edw. I." The question
directly presented by this record is, whether, when a scire
DECEMBER TERM, 1846. 33l
Sans v. The People.
facias is issued against two upon a joint and several recognizance,
execution can be awarded against one served, without personal
service upon, or two returns of nihil as to the other,
In the case of McCourtie v. Davis, 2 Gilm. 298, the writ of
scire facias for the appearance of a party to answer to a crimi-
nal charge is among those enumerated as being given by our sta-
tute. Upon mature reflection and examination we are satisfied
that it is not thus given, but only its existence and the right to
use it therein recognized. The language of the statute is, that
" the bail for the appearance, &c, may, at any time before
judgment is rendered upon scire facias to show, cause why ex-
ecution should not issue, &c, seize and surrender the prin-
ciple in discharge of such recognizance ; " thus clearly indica-
ting that the process and the right of the people to employ it in
obtaining execution upon such recognizance is derived from some
other source than this statutory enactment. The Common Law
of England, so far as the same is applicable, and the Acts of the
British Parliament made in aid thereof prior to the fourth year of
the reign of James I., with certain specified exceptions, are the
law of this State.
We have before shown, that the writ of scire facias in ac-
tions like the present was given by the Statute of West, and
not by Common Law. This statute is made in aid of the
Common Law, and is not one of the exceptions mentioned
in our Act adopting the Common Law and Acts of the British
Parliament made in aid thereof. It is applicable to our situ-
ation and condition, and so far at least as this question is
concerned, is in force within this State. A recognizance,
when forfeited, becomes a debt of record, having many of
the attributes and qualities of a judgment of a court of
record. In England, it had priority in point of payment and
was a lien upon the lands of the cognizor. In this State, for
the want of statutory regulations upon the subject, the law
in these respects has been held otherwise. But even here it
is the acknowledgment of a joint and several debt of record.
Each of the several cognizors admits upon the record that he,
separately as well as jointly with his co-obligors, is indebted
332 SUPREME COURT.
Sans v. The People.
to the people of the State in the sum specified in the recog-
nizance to be paid upon certain conditions therein expressed.
What, then, is the object or office of the scire facias which
issues upon such recognizance ? Not to permit the 'defendant
to appear and defend himself by a denial of the existence of
the debt which he has already admitted upon the record ;
not that he shall allege that another who is not summoned
has admitted the same debt in the same solemn manner
against himself ; but to have execution, not in the manner
used in ordinary cases of judgment at Common Law, but ac-
cording to the form, force and effect of the recognizance. Against
the issuing of such execution the party summoned may show for
cause, that the principle in the recognizance has complied with
its conditions ; that the debt is paid ; that there is no such rec-
ord, &c; but he cannot be permitted by plea or^otherwise to
change its nature or effect. By the record, to do this, he is
estopped.
The authorities upon this point are numerous, consistent, uni-
form, universal. We have examined many and have not found
an exception.
•' In debt, the plaintiff may bring one action against all the
persons bound in the recognizance ; or several actions against
each. But one scire facias seems in all cases to be sufficient ;
and the recognizance being joint and several, it is holden, that
the execution may be several, though the scire facias was joint ;
for the judgment is not to recover, but to^have execution accor-
ding to the recognizance. " 2 Tidd's Pr. 1099.
" If two persons acknowledge a recognizance jointly and sev-
erally, the conusee may sue^out several writs of scire facias
against the conusors. 2 Saunders, 71, note.
" If two acknowledge a recognizance of ^100, jointly and
severally, the conusee may sue several sci. fa. against the con-
usors upon this recognizance. " 6 Bac. Abr. 109.
These cases all make reference to Co. Litt, 292, and 2 Inst.
395, authorities which we have not been able to examine.
The case of Sainsbury v. Pringle, 10 Eng. Com. Law R.
does not controvert the principle before laid down. In that
DECEMBER TERM, 1846. 333
Sans v. The People.
case the scire facias was against two jointly, as bail of a
third person. The summons was joint, commanding them,
not each of them, to appear and show cause, &c. One was
served, and two returns of nihil made as to the others. The
declaration, which by our statute is dispensed with, the
scire facias being substituted therefor, was against the one
served onlv. The court held, that the scire facias being
joint, and not several in its terms, the declaration should be
joint, and no proceeding could properly be had against one
until all were brought into court. The decision, however,
appears to have been made entirely upon the technical
ground of the irregularity; proceeding from the variance
between the discriptive and mandatory parts of the scire
facias, and the declaration.
All the American authorities which we have examined,
lay down the law as settled, that where a scire*. facias upon
a joint and several recognizance issues in proper form
against the several cognizors, if one' or 'more are served,
and the writ is returned nihil as to the others, judgment
may be rendered against those served, that execution issues
against them, and each of them, according to the conditions
of the recognizance. We shall only refer to some of the
adjudicated cases, deeming it unnecessary particularly to
review them. Madison v. Commonwealth, 2 A. K. Marsh.
131 ; Chinn v. Commonwealth, 4 Bibb ; Bruce v. Colegrove,
2 Littell, 284 ; Lucket v. Austin, 4 Bibb, 181 ; Fourlee
v. Commonwealth, 4 Munroe, 128 ; Adair v. The State,
1 Blackf. 201 (a) These authorities being in point, and based
upon sound legal principles and obvious distinctions, are
decisive of this question.
We are, also, of opinion that inasmuch as the scire facias
in cases like the present, is not given by our statute, and the
statute of Westminster is by adoption in force in this State,
that a return of two writs nihil upon a scire facias upon such
recognizance is equivalent to actual service, and will justify
the award of execution against those of the cognizors who
cannot be personally served with process.
In the case of McCourtie v. Davis, which was a scire fa-
Cc) Post 351-406- McFarlan vs. People, 13 111. R 14 ; Wheeler vs. People, 39 111. B.
532.
834 SUPREME COURT.
Sans v. The People.
cias against a garnishee in attachment, for the reason that
the statutes of our State have in several instances made use
of the terms summons, scire facias, and scire facias in the
nature of a summons, indiscriminately, without regard to
the original sense and meaning of the words, in some cases
plainly indicating that personal service was still required,
in others leaving it doubtful and uncertain, and again in
others showing that manifest injustice must ensue, and the
grossest frauds be perpetrated, if personal service was not
made upon defendants the court felt constrained to lay
down a general rule relative to such process thus given and
unknown to the common law, by which the spirit of the
enactments might be preserved, and the disastrous and un-
just consequences apprehended from an opposite one might
be avoided.
We believed the rule established in that case the more
equitable and just one, and the best which, under the cir-
cumstances, could be adopted. We are of that opinion still.
But, upon reflection and careful consideration, we are con-
vinced that the case of Alley v. The People, 1 Gilm. 109,
so far as it conflicts with the principles here advanced, is
not law, and the same to that extent is overruled. And the
law is held to be, that where a scire facias issues upon a
joint and several, recognizance of this nature, and service is
had upon one or more of the cognizors, execution may be
awarded against those served with process upon a return of
nihil against such as are not found ; and, also, that in cases
like the present, under the statute of Westminster before re-
ferred to, two returns of nihil upon writs of scire facias are
equivalent to actual service on the party.
We have had considerable difficulty in arriving at a con-
clusion relative to the other question presented by this re-
cord. No authority expressly in point has been cited or
found. It is settled by numerous cases, that where a blank
is left in a deed at the time of its execution, and special au-
thority is given to a third person to fill up the same at a sub-
sequent period on ascertaining facts necessaryto enable him
to do so according to the original understanding of the par-
DECEMBER TERM, 1846. 335
Sans v. The People.
ties, and also that where an alteration or interlineation is made
in the presence of the parties and with their assent, the instru-
ment will be valid.
Upon the question whether the consent or admission of the ob-
ligor in a bond, or grantor in a deed, given or made after an
alteration or interlineation, will be binding, there seems to be
much doubt and uncertainty from the decisions which have been
made bearing upon it. I will briefly state some of the cases,
and the principles decided upon both points. »
In Decker's case, 6 Cowen, 59, one Baker recovered a judgment
against Decker before a justice. Decker sought to appeal. A
bond with a blank for a penalty was proposed, executed by Deck-
er and a surety which was delivered to a subscribing witness with
power to fill up the blank and make other alterations to render it
valid according to the statute. The witness carried the bond to the
justice, ascertained the amount of the judgment and filled up the
bond. Afterwards and within the time for appealing, the wit-
ness, supposing the bond defective, added a clause obliging the
obligors to pay the judgment before the justice, with the inter-
est and costs. The court say : "Though the agent might have
had power to correct the bond on its delivery, (a point on which
it is not necessary to decide,) he certainly had no right to tam-
per with it in this way. He could not alter it again and again
at his discretion. Such a general power cannot extend beyond
the time of its delivery. Its force was spent on filling up the
blank."(a) ,
In the case of Sparks v. United States, 8 Peters' Cond. R.
244, a bond after its execution was altered by striking out one
obligor and inserting another by the consent of all the parties.
This was held valid upon the ground that the alteration was
made by the concurrence ^of all. To the same effect are the
cases of Warring v. Williams, 8 Pick. -322, and Wolley v. Com-
stock, 4 Johns. 54.
In Kerwin's case, 8 Cowen, 118, one Polley appealed from
the judgment of a justice. A bond in blank as to the re-
cital of the judgment was prepared and signed by Polley
and his surety. (6)The surety, by parol was authorized to fill
(a) Maus vs. Worthing, 3 Scam. R. 27 ; Smith vs. U. S. 2 Wal. U. S. R. 219.
(b) contra. People TB. Organ, 27 111. R. 27.
336 SUPREME COURT.
Sans v. The People.
up the blank and deliver the bond for both, which was done
and the bond held to be obligatory upon both obligors.
In the case of Byers v. McClenahan, 6 Gill and Johns. 250,
the defendant had executed a bond entirely in blank. It was
filled up and afterwards shown to hirn, and he admitted his
signature and did not deny that he would be bound by it. Held,
that it was a valid bond.
" If the name of an obligor be signed without his authority,
yet if he afterwards acknowledge the bond to be his, he will
be bound." Hill v. Scales, 7 Yerger, 410.
The consent of an obligor to an alteration of a bond given
after an alteration is made will not repel the plea of non est
factum ; but if given before or at the time of the alteration, it
will be considered as a re-execution." Cleaton v. Chambliss,
6 Rand. 86. (a)
The two last cases cited are only found in 1 U. S. Digest, the
reports referred to not being within our reach for examination.
From the brief statement therein made, they would seem to be
in conflict. There is however, one general principle which runs
through all the cases in relation to alterations and interlineations
of a material character in all instruments under seal. And that
is, that as to such of the parties thereto who have not, prior to
or at the time, assented to the alteration or interlineation, the
instrument is absolutely void. O'Neale v. Long, 2 Peters' Cond.
R. 24 ; 4 Wash. C. C. R. 26 ; Warring v. Williams, 8 Pick.
322.[6]
The question, then in this case, is, shall that, which, in con-
templation of law so far as the plaintiff in this record is con-
cerned, was absolutely void and of no more efficacy than a sheet
of blank paper without a signature, become valid and obligatory
upon his subsequent parol assent that he would be bound by it
as altered and amended ?
In determining questions of this sort, it is the duty of: the
court to look beyond the particular case under immediate
consideration, to the consequences which must result from the
workings of the general rule to be established. Probably,
in this instance, no great injustice would be done by holding
the plaintiff to the payment of this penalty. It is most likely
±(a) Reed vs. Kemp, 16 111. R. 445 ; Vincent vs. People, 25 111 . R. 502.
(b) Turrett vs. Waimvright, 4 Gil. B. 37.
DECEMBER TERM, 1846. 837
Sans v. The People.
although the alteration was not pointed out nor the bond read
to him, that he fully understood its extent and character,
and designed and intended to become liable thereon in
case the principal failed to appear and answer to the
charge preferred against him. But was it his deed ? If,
without any previous consultation with the plaintiff, the
sheriff who took this bond had drawn it up, signed it with the
plaintiff's name and attached his seal, and afterwards met
the plaintiff in the street, informed him what he had done, and
asked him if he would be bound by such act, and the plaintiff
had consented, Ave apprehend it would scarcely be pretended
that such an acknowledgment would have rendered the plain-
tifi liable upon the bond ; or that any binding contract under
seal or otherwise could be thus signed, sealed and delivered
by parol. Wherein consists the difference between the supposed
and the present case ? In either, at the time the instrument is
written it is void. It is not then the party's deed. Can it then
become so by a bare acknowledgment of the supposed
obligor that he is willing to be bound by it, and that, too, with-
out any examination of its contents and conditions ? The
very thought is startling. Accustomed, as we have always
been, to the idea that there was a deliberative solemnity about
a written .contract under seal, we are naturally alarmed at the
inroads which the progressive science of the law is continually
making upon ancient and well established landmarks which
have stood the test of ages and of time.
When the party to be charged consents at the time to the
alteration, there is a mixture of consideration and deliberation
in the act which gives evidence of his i ntention to make the
deed his own. But an agreement to be responsible, after such
alteration has been made, should not bind him unless the act of
recognition should be of a character so unequivocal that no doubt
could remain that in legal contemplation at least, there was a
making and delivery of the deed. Delivery is essential to the
validity of every instrument under seal. It is not indispensa-
ble that this should be done in person by the party singing it. It
may be done by some person in his behalf, and in some cases
even by legal implication.
GILL. — III — 22.
SUPREME COURT.
Sans v. The People.
But it must be done. When was this bond delivered ? What
has the plaintiff done, which, in contemplation of law, amounts
to such an act ? He had been informed that it had been altered
that the penelty had been increased without his knowledge or
consent, and upon such information he stated that he was still
willing to be bound by it in its amended form. It was then
void. In fact the plaintiff has neither signed, sealed or delivered
it since, in person or by agent, nor, as we think, done any act
equivalent thereto.
If, under the circumstances, we hold this bond obligatory,
we know not where we could establish the boundary line between
mere verbal, parol and written contracts under seal, and should
be reduced to the necessity of permitting it to rest entirely in
the recollection of witnesses, and not in the solemn act of the
party to prove whether a written instrument was his deed or
not. On the whole, we are of opinion that the plaintiff should
have had judgment in his favor in this case upon his plea of
non est factum, and that the court should have instructed the
jury as requested by the plaintiff, and withheld the instruction
given.
The judgment of the circuit court is reversed.
Judgment reversed.
Same v. Same.
Motion to quash a Fee Bill.
A Judgment rendered in the circuit court against a surety in a recognizance
was reversed in the Supreme Court and not remanded. The Clerk of the
latter court issued a fee bill for his costs, and, among other items, a fee was
charged for making a copy of the judgment, for the certificate'and seal :
Held, that as, under the circumstances of the case, it did not follow that the
Opinion was to be copied and certified to the circuit court, the surety was
not bound to pay for such copy and certificate . unless he require them to
be made.
A plaintiff in error, in a cause where the People are defendants in error, who
succeeds in reversing the judgment against him, is only responsible for the
costs made by him in the prosecution of the writ of error.
Motion to quash a fee bill issued for the costs of the
Clerk of the Supreme court, in the foregoing cause. The
DECEMBER TERM 1846. 339
Sans v. The People.
motion was made by the plaintiff in error, who had succeeded
in the prosecution of his writ. The items of the entire bill
are embodied in the opinion of the court. The fee bill was
quashed and a re-taxation of the costs ordered.
M. McConnell, for the plaintiff in error.
D. B. Campbell, Attorney General, for the People.
The opinion of the court was delivered by
Treat, J.* A judgment was rendered in the circuit court
against Sans on a recognizance for the appearance of one Jor-
dan to answer to a criminal charge. On a writ of error the
judgment was reversed. The clerk of this court has taxed the
f ollowing items of costs against Sans and issued a fee bill for
the collection thereof :
No. 1. Filing transcript 20 cents, docketing cause
12| cents, 324.
No. 2. Writ of error made supersedeas 1 .00, filing
same 6£. 1.06J
No. 3. Scrie facias and seal 1.00, filing 6J, 1-06^
No. 4. Supersedeas and seal 1.00, filing same 6£, 1.06£
No. 5. Filing assignment of errors 6J • 6|
No. 6. Entering joinder in error 25, filing joinder
in error 64; 31 h
No. 7. Filing abstracts, 10 copies 624; ; making
copies thereof, 60 folio, 9. 62 J
No. 8. Entering argument 25, entering submis-
sion 25, order taking time 25, 75
No. 9. Entering judgment and opinion, 60 folio, 10.80
No. 10. Making copy thereof 9.00, certificate
and seal 50, 9.50
No. 11. Making fee bill 37 J, making copy thereof
25, cert, and seal 50, 1.124;
No. 12. Entering sheriff's return 25, entering
satisfaction 25, postage 20, 70
A motion is now made by Sans to quash the fee bill, on
♦Denning, J. did not hear the motion, &c.
340 SUPREME COURT.
Henderson v. Welch.
the ground that he is not liable for the payment of the costs
charged. According to the decision of this court in the case
of Carpenter v. The People, ( a )he is responsible for all the costs
made by him in the] prosecution of the writ of error. The
court is of the opinion that all of the charges in the fee bill, but
the sixth and tenth items, are properly taxable against Sans.
The services contained in the sixth charge were performed on
the part of the People, and Sans is not bound to pay for them.
The tenth item is not taxable against Sans unless he require the
clerk to perform the services. The cause was not remanded,
and it does not follow that the opinion of this court is to be
copied and certified to the circuit court. If Sans require this
to be done he will then be bound to pay for it. The ele-
venth and twelfth items are properly included in the bill of
costs, but are not to be collected unless the services are act-
ually rendered.
The fee bill will be quashed, and re-taxation of the costs
ordered.
Fee bill quashed.
Eli Henderson, appellant, v. David Welch, appellee.
Appeal from Mc Henry.
The equitable assignee of a chose in action may sue upon it in the name of
the party having the legal title; but he is bound to indemnify such part
against the payment of costs.
A suit was brought in the name of A. for the use of B. against C. and D. C.
only was served with process, and the suit being dismissed, judgment was
rendered for costs in favor of C. which A. paid. A. sued B. in assumpsit for
money paid. On the trial, a fee bill was introduced and an execution against
A. for the costs adjudging C. and D. both returned satisfied. A. then pro-
ved by the sheriff' that the costs were paid by A. Judgment was according-
ly rendered in his favor: Held, that the evidence clearly established the fact
of his having discharged the liability, though the execution did not techni-
cally pursue the judgment
Assumpsit in the McHenry circuit court, brought by
the appellee against the appellant, and heard before the
Hon. Richard M. Young, without the intervention of a jury,
at the November term 1846, when a judgment was rendered
(a) Ante 147.
DECEMBER TERM, 1846. 341
Henderson v. "Welch.
in favor of the plaintiff below for $95.24. The defendant
appealed from this judgment.
A. Lincoln, for the appellant, argued the case in this
court, and cited 2. Comyn on Cont. 142; 1 U. S. Dig. 281,
§ ?25 ; Ibid. 283, § 251 ; 12 Mass. 11 ; 3 Har. & Johns. 57 ;
9 do. 548 ; 2 Wend. 481 ; 1 Greenl. 76 ; 7 Wend. 284 ; 2
Starkie's Ev. 58 ; 8 Johns. 249 ; 8 Wend. 112.
I. G. Wilson, on the same side, filed the following brief:
In an action for money paid, there should appear either
1st, a request, or 2d, a legal compulsion to pay.
Here there was no request shown. Then, does the record
show that Welch has been compelled to pay any money for
the use of Henderson ?
1. The execution relied on by plaintiff below was in favor
of Samuel Shaw and Daniel Shaw, against David Welch.
It is to be presumed that the clerk did his duty correctly,
and that such a suit as described in the execution existed in
he Da Page Circuit Court. Surely tbis execution contains
no evidence of money paid for the use of Henderson. The
record introduced by plaintiff below showed a judgment in
favor of Samual Shaw v. David Welch & Eli Henderson.
This judgment does not aid the execution. Both of the
parties are different. Suppose the plaintiff below had
introduced an execution in favor of John Doe and Richard
Roe against himself, it would certainly be no evi-
dence of money paid by him for the use of Henderson.
2 The plaintiff below failed to introduce with his exe-
cution, a bill of the costs. This was necessary in order to
have made out his cause. The statute provides, Rev.
Stat. 249, § 26, "that none of the above fees (including
clerks, sheriffs, &c.) shall be payable until a bill of the same
shall have been presented to the person chargeable with the
same, stating the particulars of xhe said bill," &c. The de-
fendant had a right to insist on the production of this bill in
order that he might know with what he was charged. The
plaintiff below was not compelled to pay without this bill,
and if he did make payment it was voluntary, and he can
not. in such case, recover.
342 SUPREME COURT.
Henderson v. Welch.
E. E. Harvey, I. N. Arnold, A. T. Bledsoe, for the
appellee.
The opinion of the court was delivered by
Treat, J. This suit was commenced in the McHenry
Circuit Court by Welch against Henderson. The declara-
tion was for money paid ; the plea non assumpsit. On the
trial before the court, the plaintiff read in evidence the re-
cord of the proceedings had in a cause in the Du Page
Circuit Court, which Welch for the use of Henderson was
plaintiff, and Samuel and Daniel Shaw were defendants,
showing that Samuel Shaw only was served with process,
and that the suit was finally dismissed, and a judgment en-
tered that Samuel Shaw recover of Weleh and also Hen-
derson his costs, and that he have execution therefor. He
then introduced a fee bill against Welch for the costs made
by the plaintiff, amounting to $14.87J and an execution
against Welch for the costs adjudged to Samuel and Daniel
Sbaw, both of which were returned satisfied. He then prov-
ed by the sheriff that the same were paid by Welch. The
defendant objected to all of this testimony. The court found
the issue for the plaintiff and assessed his damagesat $95.24,
the amount of the fee bill and execution, and the interest
thereon from the time of paymemt. The court overruled a
motion for a new trial, and rendered a judgment on the find-
ing. Henderson prosecuted an appeal to this court.
The equitable assignee of a chose in action may sue upon
it in the najne of the party having the legal title but he is
bound to indemnify such party against the payment of costs.
Here, the former action was in assumpsit and no doubt found-
ed on a chose in action, the legal interest in which was
vested in Welch. Henderson having the beneficial interest
only had to sue in the name of Welch, who thereby became
the plaintiff on the record, and as such, liable in the first in-
stance for the costs. The action failing, the whole of the
costs were adjudged against him. If he has paid them he
has a clear cause of action against Henderson for so much
money paid for his use. The pioduction of the judgment
showed the liability of Welch to pay cost incurred for the
DECEMBER TERM, 1846. 343
Bryant et al. v. Dana.
benefit of Henderson. The only question is, did the evidence
establish the fact that he had discharged the liability. Of this
there can be no reasonable doubt. The execution does not tech-
nically pursue the judgment, but enough appears on its face to
warrant the presumption, that it was issued on the identical
judgment. It issued out of the same court, on a judgment ren-
dered at the same term, and in a case between the same parties.
The only discrepancy between the judgment and execution, con-
sists in the recital in the latter, that the costs were adjudged
to the Shaws, when in fact the judgment was in favor of but one
of them, although both of them were defendants. The variance
was not material for the purposes of this case. The execution
was only collaterally in question. It was introduced merely to
prove the fact of payment, and not as a foundation to uphold
rights acquired under it.
The judgment of the circuit court is affirmed with costs.
Judgment affirmed.
Thomas Bryant et al. plaintiffs in error, v. Giles Dana,
defendant in error.
Error to Peoria.
Where a sheriff returns an execution without having made a levy, his authority
is at an end. But If he has made a levy during the life time of the execution,
he has the right to sell the property, or receive payment of the judgment
afterwards, notwithstanding he has in the mean time returned the process.
An equitable assignee of a judgment has the right to sue a sheriff in the name of
him who has the legal interest therein to enforce a liability incurred by such
sheriff.
The Circuit Court may in their discertion, allow or refuse an application for
leave to file additional pleas and the exercise of that discertion cannot be
assigned for error.
A levy by a sheriff, or a payment of money to him, may be shown by parol
testimony.
This was the case of an application made in the Peoria Cir-
cuit Court, by the defendant in error, under the statute, for an
assessment of damages in his favor against the plaintiff in error,
344 SUPREME COURT.
Bryant et al. v. Dana.
Bryant, the former sheriff of Peoria county, and bis securities,
for official neglect, &c. The substance of this application and
the various proceedings thereon will appear in the opinion of
the court. The jury assessed the damages at $57(3.74, when the
defendants moved for a new trial, which motion was overruled,
and judgment rendered as stated in the opinion.
C. Ballance, for the plaintiffs in error, relied on the follow-
ing points and authorities :
1. If either of defendants' pleas was bad, the demurrer there-
to ought to have reached the declaration, or complaint which oc-
cupies the place of a declaration. It is entitled, and the suit
is carried on in the name of Dana, whereas, by plaintiff's own
showing, it is only an additional proceeding in the case of the
People v Bryant. The second plea denies the reception of the
money on the execution by Bryant, in his capacity of sheriff.
This will be important on motion for a new trial.
2. Although, in general, the defendant cannot as a matter
of right file additional pleas after the issues have been made,
this case is an exception, and after plaintiff had been permitted
to file a new replication, the defendants ought to have been
permitted to file a new plea.
3. The fourth plea ought to have been sustained. This case
is distinguishable from Dana v. Philips, 3 Scam. 552. There,
the proceedings show that the sheriff had the execution, and re-
ceived the money on it. Here, it is alleged that the clerk would
not let him have it.
4. If the sixth plea is true, ought not plaintiff to have re-
plied, showing his right, notwithstanding, to receive and receipt
for the money ?
A new trial ought to have been~granted, because there was
no legal evidence to sustain either the issue on the second or
fifth plea- The declaration, or that which occupies the place
of a declaration, states the existence of the facts, " as by
said writs of fieri facias and the returns and indorsements there-
n, on file in said court, will more fully appear. "
DECEMBER TERM 1846. 345
Bryant et al. v. Dana.
Then these documents alone should have been resorted to
prove the facts. The return, on plaintiff's motion, had
been quashed, and was no evidence of the existence of any
fact at the time of the trial. In the case above referred to,
the court decide : "It is the duty of the officer, when once
he has made the levy, no matter what becomes of the execu-
tion, to go on with the sale," &c. But here there was no
legal evidence of the levy. That which once had been a
levy had ceased to exist, and that by the act of the plaintiff.
Oral proof cannot be substituted for any instruments which
the law requires to be in writing. 1 Greenl. Ev. 102.
Certificate of clerk, being sworn, cannot be supplied by
parol. Commonwealth v. Sherman, 5 Pick. 239 ; see, also,
4 do. 66; Tripp v. Garey, 7 do, 266 ; Gifford v. Woodgate,
11 East, 297; 2 Duer's*Pr. 295.
H. 0. Merriman, on the same side, in continuation.
1. The whole record relating to the subject matter should
be produced, so that the court can see if the same is not
set aside. 7 Com. Dig. 427 ; 1 Phillips' Ev. 219 ; Creswell
v. Byrne, 9 Johns. 287.
2. If set aside it is a nullity, and does not support the
allegation in the declaration, and the plaintiff below has no
rights under it. 2 Duer's Pr. 295 ; 3 Johns. 523 ; 15 East,
614, note c ; 3 Wilson, 345 ; 2 do. 385 ; 1 Strange, 509.
The plaintiff below seeks to recover on the force of the
levy only ; otherwise the plaintiff has no right to receive the
money. Phillips v. Dana, 3 Scam. 537.
The return of the levy, &c. having been quashed, it is the
same as if it had never been made. 2 Bac. Abr. 740, sup-
ported by 1 Strange, 509 ; 3 Johns. 323, and 15 East, 614.
E. N. Powell, for the defendant in error.
It is sufficient if the substance of the issue be proved.
1 Greenl. Ev. § 56.
Where the record mentioned in the pleadings is mere in-
ducement, and not the gist of the action, then a variance
346 SUPREME COURT.
Bryant et al. v. Dana.
between the allegation and the proof is immaterial. Ibid.
§§51, 70.
Secondary evidence, when allowed.' lb. § 90.
Mere matter of evidence need not be stated in pleading.
1 Chitty's PI. 258.
When a profert, cr an excuse for the omission was unne-
cessary, the statement of it will be considered as surplusage.
1 Chitty's PL 399. And if made, lb. ; Stephen's PI.
437-8-9.
Now, if the return of the levy was quashed, it no longer
was in existence, and parol evidence was properly received.
1 Greenl. Ev. 102, § 86,
The opinion of the court was delivered by
Treat, J. Giles C. Dana filedj an application in the
Peoria circuit court, alleging, in substance, that at the
October term 1839 of said court, the people of the State
of Illinois, for the use of Peoria county, recovered a judg-
ment against Thomas Bryant, Charles Ballance, Augustus
0. Garrett, John C. Caldwell, and Luther Sears, upon the
official bond of said Bryant as sheriff of Peoria county, for
the sum of $10,000 debt, the penalty of the bond, and
$470.30 damages, by reason of certain breaches thereof, a3
by reference to the record of said judgment will more fully
appear ; that he has sustained damages to the amount of
$700, by reason of the neglect of said Bryant to perform
the duties of the office of sheriff, and prays for a writ of in-
quiry on said judgment to assess the same ; and he suggests,
as a particular breach of said bond, that on the 23d of
May, 1838, he recovered a judgment in said court against
Thomas Phillips for $373.60 damages, and $20.82 costs ; that,
on the 18th of March, 1839, an execution was issued thereon
and delivered to said Bryant, as sheriff, to be executed, and
that said Bryant, on 16th of June, 1839, received in part
satisfaction thereof the sum of $5, and, on the 18th of
the same mon^h, returned the execution with an indorse-
ment of such payment ; that, on the 18th of September, 1839,
DECEMBER TERM, 1846. 347
Bryant et al. v. Dana.
an alias execution was issued on the judgment and deliver-
ed to said Bryant, as sheriff, to be executed, and that, on the
17th of December, 1839, he levied the same on certain lands,
and on the following day received from said Phillips the
whole amount of the execution, interest and costs, as by said
executions and the returns and indorsements thereon will
fully appear. The defendants in the judgment appeared and
pleaded six pleas. The first denies that an execntion was
issued on the judgment against Phillips on the 18th of March,
1839, directed to the sheriff of Peoria county to be executed.
The second denies that Bryant, as sheriff, received on the
18th of December, 1839, the amount of the alias execution.
The third alleges that the money was paid to Bryant after
the expiration of ninety days from the issuance of the execu-
tion, and after the execution had been returned to the clerk's
office and filed among the records thereof. The fourth al-
leges, that on the 18th of December, 1839, the execution
had been returned to the clerk's office and filed among the
records of the court, and that the clerk refused to let Bry-
ant have if to receive the money on. The fifth alleges that
the money was received by Bryant without legal authority,
and was not received by him as ; sheriff. The| sixth alleges
that Dana had no interest in the subject matter of the suit,
and that it was commenced without his knowledge or con-
Bent. The first, second and fifth pleas concluded to the
country, and issues were joined thereon. The court sus-
tained demurrer to the third, fourth, and sixth pleas. At a
subsequent term, the defendants ; asked leave to file addi-
tional pleas, which the court denied.
On the trial before a jury, the plaintiff, after introducing
the judgment and executions against Phillips, offered in evi-
dence the sheriff's indorsements on the alias execution,
which showed a levy on land on the 17th of December, 1839,
and a payment of the amount of the judgment, interest
and costs on the following day ; to the reading of which in-
dorsements the defendants objected, [and produced an order
of the Peoria circuit court, entered at a previous term*
showing that the sheriff's return on the alias execution was
348 SUPREME COURT.
Bryant et al . v. Dana.
quashed at the instance of the plaintiff ; and the court there-
upon sustained the objection. The plaintiff then proved by
the duputy of Bryant, that the levy was made as stated in
the plaintiff's motion ; and by other witnesses that the money
was paid as stated in the motion, but not until the day after
the execution was returned to the clerk and filed in his office.
The defendants objected to the introduction of this testimony.
The jury found the jssues for the plaintiff, and assessed
his damages at $576.74. The court overruled a motion for
a new trial, and a judgment was entered ;that the plaintiff
recover of the defendants the amount of the verdict and
costs, and that execution issue therefor on the original judg-
ment against them. They prosecute a writ of error. The
several decisions of the circuit court, sustaining the demur-
rers to the pleas, refusing'the motion to file additional pleas,
admitting the evidence respecting the levy of the execution
and the payment of the money to the sheriff, and denying
the motion for a new trial, are assigned for error, and will
be considered in their order.
The third and fourth pleas are intended to present the
same defence and may be disposed of together. These pleas
are framed on the erroneous supposition that a sheriff has
no authority to receive money in satisfaction of a judgment,
after he has returned the execution to the office from whence
it issued. This position may be true of some cases, but is
not of all. Where the sheriff returns an execution without
having made a levy, his authority is at an end ; but if he has
made a levy during the lifetime of the execution, he has the
right to sell the property or receive payment of the judg-
ment afterwards, notwithstanding he has in the meantime
returned the process. These pleas are defective in not
negativing the fact that a levy may have been made by the
sheriff during vitality of the execution. The precise
defence sought to be interposed by these pleas was before
this court in a case between the parties to the execution,
and it was determined that the payment to the sheriff after
the return of the execution, was a good satisfaction of the
judgment. It is useless now to discuss the question. Phil-
DECEMBER TERM, 1842. 349
Brjant et aJ. v. Dana.
lips v. Dana, 3 Scam. 541. The sixth plea is clearly bad.
It is a matter of no importance whether the plaintiff had
any substantial interests in the subject matter of this proceed-
ing, or whether it was commenced with his knowledge, or by
his consent. It is sufficient if he had the legal interests.
Of this the record affords conclusive proof. He was the
plaintiff in the judgment against Phillips, and the cause of
action against the sheriff must be prosecuted in his name.
If he has parted with the beneficial interests, the equitable
assignee has the undoubted right to sue in his name to en-
force the liability. The cases of Mc Henry v. Ridgely, 2
Scam. 309, and Chadsey v. Lewis, 1 Gilm. 153, are expressly
in point.
It was insisted on the argument that the plaintiff's motion
was insufficient, and therefore, that the demurrers should
have been carried back and sustained to it. In the opinion of
the court, the motion shows on its face a proper case for
an assessment of damages on the original judgment against
the sheriff and his securities.
The refusal of the court to permit additional pleas to be
filed cannot be assigned for error. The circuit courts may in
their discretion, allow or refuse such applications. The exer-
cise of that discretion cannot be reviewed here.
The decision of the court admitting the parol testimony
was not erroneous. So far as this case is concerned, the
only effect of the quashing of the sheriff's return was to pre-
vent the plaintiff from proving the levy and receipt of the
money by the sheriff, by his indorsements on the execution.
It left the matter in the same condition as if no such indorse-
ments had been made. The plaintiff in his suggestion of
breaches alleged that these facts appeared by the return,
and perhaps he might have been compelled to establish them
in that way, if the defendants had put the allegation in issue.
This they did not do. The first plea only relates to the first
execution. The second and fifth pleas only put in issue the
receipt of the money by Bryant as sheriff, thus leaving the
plaintiff to prove the payment by any legitimate testimony.
A levy by a sheriff, or a payment of money to him, may be
350 SUPREME COURT.
Bryant et al. v. D»na.
shown by parol evidence. Suppose a sherifl should receive full
payment of an execution, and should fail to make an indorse-
ment thereof on the process, would the plaintiff in seeking to
charge that officer with the receipt of it, or the defendant in
attempting to set it up as a satisfaction of the judgment, be
precluded from showing it by parol. The proposition is too
plain to need elucidation. Or, suppose the sheriff had made a
levy on land and had sold and conveyed the same, would the
title of the purchaser be defeated because the officer had
omitted to make an indorsement on the execution of the levy
and sale ? The law is equally clear that it would not. (a)
The last error is not otherwise relied on than for the purpose
of presenting the question already disposed of. The whole of
the evidence is not reported. The proceeding was properly com-
menced and carried on in the name of Dana as the plaintiff.
The final order, that the payment of his damages should be en-
forced by issuing execution on the original judgment, was cor-
rect.
The judgment of the circuit court is affirmed with costs.
Judgment affirmed.
(a) Phillips vs. Coffee, 17 111. R. and notes.
DECEMBER TERM, 1846. 851
Crisman et al. v. The People.
George Crisman et al., plaintiffs in error, v. The People of
the State of Illinois, defendants in error.
Error to Morgan .
A recognizance was entered into the Morgan circuit court, which was sub-
sequently forfeited by reason of the default of the principal to appear as
required. A sci. fa. was issued from that court to Scott county, and there
served on three of the sureties. They appeared in court, and, by their
counsel, objecting to its jurisdiction, moved to quash the sci. fa. becaui-e
it was issued without legal aulhority and contained no averment that the
cause of action accrued in Morgan county: Held, that the court had full
power to issue its process to any county in the State where the defendants,
or any of them resided, or might be found ; held, also, that the rule is uni-
versal, that recognizances must be prosecuted in the court in which they are
taken or acknowledged, or to which they are by law returned; held, further
that where a recognizance is joint and several, the sci. fa. upon it, is in the
nature of a several process against each, having for its object the procure,
ment of an execution according to the force and effect of the recognizance.
A scire facias upon a recognizance is not the commencement of a suit, within
the meaning of the Practice Act prohibiting suits from being brought out of
the county where the cognizors may reside ; but it is a judicial writ to have
execution upon a debt of record.
Scire Factas upon a joint and several recognizance entered
into in the Morgan circuit court, &c. issued to Scott county, and
there served upon three of the several sureties therein. Those
served with process appeared before the said court at the May
term, 1846, the Hon. Samuel D. Lockwo'od presiding, and
by counsel, moved to quash the writ because it contained no
sufficient averment to give the court jurisdiction of the cause, &c.
The motion was overruled, the defendants' default entered,
and judgment accordingly.
M. McConnell, for the plaintiffs in error.
1. Has the court power to issue writs of scire facias upon
recognizances of bail at all ?
This is not a common law power. By the common law
this writ could issue only in real actions and in proceedings
in rem. 6 Bac. Abr. 105, 108 ; McCourtie v. Davis, 1 Gilm.
191 205. If this be the rule of the common law, all the
352 SUPREME COURT.
Crisraan et al. v. The People.
rules referred to in the English law books as governing writs
of scire facias were rules prescribed by Acts of Parliament.
Has the statute of Illinois provided for this writ in a case like
the present ? The only section of law is in the Revised
statutes, 187, § 196.
II. If the circuit court had power to issue this writ at
all, where is the power to issue it to a foreign county ? The
statute only confers jurisdiction upon the circuit courts
within their counties. Rev. Stat. 146, § 29. Why was it
necessary to pass an express law giving the Sangamon cir-
cuit court jurisdiction over civil causes in favor of the
People or the state, if the circuit courts had that power
without that law. lb. §§51, 60-64. Why was it necessary
to pass the 194th section authorizing the issuing of execu-
tions to foreign counties if the circuit court had such power
without that section. The first section expressly directs
that the first process shall be directed to the county where
the court sits. lb. 413. The second section of the same
Act provides, that it may issue to a foreign county in certain
cases, but this is not one of them, not coming within its pro-
visions. If the scire facias stands for a declaration, it has
not the necessary averments giving the court jurisdiction.
This is a civil action and the people occupy the place of plain-
tiff ; but where is the county of this plaintiff under the pro-
visions of that section ? The cases decided in this court
under that section, and in relation to confining the circuit
courts to their counties will be found in Key v. Collins, 1
Scam 403 ; Van Horn v. Johnston, 2 do. 2 ; Shepherd" v.
Ogden, lb. 260 ; Clark v. Harkness, 1 do. 56. Cases in
o;her states tending to shed light upon this subject are nu-
merous. 2 Bibb, 570 ; 2 Littell, 156 ; 6 J. J. Marsh. 578 ; 1
Richardson, 308 ; Walker v. Hood's Ex'rs, 5 Blackf. 266-7.
III. Suppose the court had power to issue the writ of
scire facias, and also had power to issue it to a foreign county
yet it was error to r nder a judgment against three out of
five of the defendants, and at the first term without making
the principal also a party. Alley v. The people, 1 Gilm 109 ;
2 Duer's Pr. 41, note 82 ; Graham's do. 433-4 ; 2 Tidd's do.
DECEMBER TERM, 1846. 353
Crismau et al. v. The People.
1124 ; 1 East, side page, 89, note 6 ; 6 Bac. Abr. 121 ; 3 A.
K. Marsh. 641.
IV. This judgment is upon a scire facias against five
persons, founded upon a recognizance against five persons,
which recognizance is in the nature of a judgment, and the
object of the suit is to have execution upon that judgment.
Now, must not this execution be against all the defend-
ants in that judgment, or against one only ? Can a plaintiff
have an execution against three of five defendants ? If he
has a judgment against five, must he not revive it against all
or only against one ? 6 Bac. Abr. side page, 109.
V. There is no principle better settled, than the plain-
tiff upon a scire facias cannot recover costs or interest, unless
there is an express statute authorizing it. In this case judg-
ment was rendered for cost against the defendants. 6 Bac.
Abr. side page, 103. The eleventh section of the Act in
relation to cost, [Rev. Stat. 127,] gives cost in such cases,
where plea was pleaded or demurrer joined thereon, if judg-
ment be rendered against defendant. But here no plea was
pleaded or demurrer filed and joined.
J. W. Evans, on the same side, cited 1 Tidd's Pr. 253,
side page ; Idid, 1323 ; 6 Bac. Abr. 121 ; Alley v. The People
1 Gilm. 112 ; White v. Thomas, Bre. 43 ; Cox v. McFerron,
lb. 10 ; State v. Humphreys, 4 Blackf, 535.
D. B. Campbell, Attorney General, for the People.
The sci. fa. could be sent to another county. Rev. Stat.
413.
A sci. fa. can only issue from the court in whose posses-
sion the record is. 9 Mass. 520 ; 7 do. 343.
A sci. fa. must be directed to the county where the cog-
nizor resides. 2 Pirtle's Dig. 370 ; 3 J. J. Marsh. 642.
Judgment can be rendered by default when defendant
fails to plead. Bre. 43.
Judgment can be rendered against one security on sci. fa.
without the other being served, or two returns of "nihil."
gil. in. — 23.
354 SUPREME COURT.
Crismanetal. v. The People.
1 Gilm. 109 ; 2 Tidd's Pr. 1091-2 ; 1 Blackf. 202 ; 3 do., 337 ;
2 Pirtle's Dig. 318, 366.
H. Dusenbury, Circui t Attorney, filed the following brief :
It is insisted that the bond upon which the sci. fa. was
issued against the plaintifis in error was joint and several,
and is not like the cases cited by the counsel for the plain-
tiffs in error.
The court below had jurisdiction, and the record shows
no error. The sci. fa. could only issue from the court where
it was a matter of record ; there the cause of action arose,
and that court possessed legal authority to send its process
to any county in the State of Illinois where the defendants
resided. The court correctly entered judgment only against
the parties served with prosess. Rev. Stat. 413, § 2 ; Madi-
son v. Commonwealth, 2 A. K. Marsh. 131 ; Lucket v. Aus-
tin, 4 Bibb, 182 ; Bruel v. Colgan, 2 Littell, 284 ; Chinn v.
Commonwealth, 5 J. J. Marsh. 29 ; United States v. Cushman.
2 Sumner, 310 ; 3 U. S. Dig. 389? §109.
The opinion of the court was delivered by
Purple, J,* In this case a writ of scire facias was issued
upon a forfeited recognizance, entered into at the May term
of the Morgan circuit court, by Charles Crisraan, as princi-
pal, James Babbitt and William Read, together with the
plaintiffs in error as sureties, for the appearance of the prin-
cipal at the next circuit court of said county, to answer to
an indictment for larceny.
The recognizance, which is set out in hsec verba in the
scire facias, was taken, acknowledged and entered of
record in open court.
It is joint and several, and in other respects in the usual
form.
The plaintiffs were served with process, and the same
was returned nihil as to Charles Crisman, Babbitt and
Read. The writ was issued from the Morgan circuit court
to the Sheriff of Scott county, aud executed and returned
* -Wilson, C. J. and Justices Lockwood and Young did not sit in this case.
DECEMBER TERM, 1846. 855
Crisman et al. v. The People.
by him. The plaintiff appeared and moved to quash the
writ, which motion was overruled ; and in default of further
answer, judgment was rendered against them that execution
issue for the amount of said recognizance. Two points are
relied on to reverse the judgment.
1. That the circuit court erred in issuing process to
the county of Scott.
2. That no judgment awarding execution could be en-
tered against the plaintiffs without service upon all the
cognizors, or two returns of nihil as to those not served.
The last question has been fully considered and settled in
the case of Sans v. The People, decided at the present term
of this court. (Ante, 327.) In that case it is held, that the
recognizance being joint and several, the scire facias upon
it is in the nature of a several process against each, the
object of which is, to obtain execution according to the
force and effect of the recognizance.
There can be no doubt about the jurisdiction of the court.
It had full power to send its process to any county in the
State, where the plaintiffs, or any of them, resided or might
be found.
It is a universal rule, that recognizances must be prose-
cuted in the court in which they are taken or acknowl-
edged, or to which they are by law returned.
The cognizors, by the acknowledgment of this recogni,
zance, had already submitted themselves to the jurisdiction
of the court. The scire facias is not the commencement oi
a suit, within the meaning of our Practice Act, prohibiting
suits against defendants from being brought out of the
county where they may reside ; but a judicial writ to have
execution upon a debt of record.
There is no error in this proceeding. The judgment of
the circuit court is affirmed with costs.*
Judgment affirmed.
* A petition or a re-hearing was filed in this cause, and denied. There was
a second cause between the same parties, depending upon the same state of facts
and questions of law, and the same judgment was rendered.
356 SUPREME COURT.
Cantrill v. The People.
Tilman B. Cantrill, plaintiff in error, v. The Peo ple
of the State of Illinois, defendants in error.
Error to Franklin.
An indictment for obstructing an officer in the execution bi process, should
show that such process was legal. If issued from a Court of limited juris-
diction, for instance, the Court of Probate, it should be made to appear that
the Court in issuing it, acted within the sphere of its authority.
Indictment, in the Franklin circuit court, against the
plaintiff in error for obstructing a constable in the execution
of process, tried before the Hon. Walter B. Scates and a
jury, at the August term 1846, when a verdict of guilty was
rendered, and a fine of $30 imposed by the court.
The defects in the indictment are noticed by the court.
H. Eddy and D. J. Baker, for the plaintiff in error.
The facts stated in the indictment do not constitute an of-
fence, because
1. The authority of the Probate Justice to issue the pro-
cess is not alleged; and
2 . That the process was a legal one.
In support of these positions, see 1 Chitty's Crim. Law,
60-2; 3 do. 144, and note a; 1 Russell on Crimes, 361-2, side
paging.
D. B. Campbell, Attorney General, for the People, sub-
mitted the cause without argument.
The Opinion of the Court was delivered by
Wilson, C. J. The defendant below was indicted for ob-
structing an officer in the execution of process. The indict-
ment charges that one Fielding Madox was a constable, duly
qualified, &c. ; that there was put into his hands for collection
a certain execution from the office of Simeon M. Hubbard
Probate Justice of the Peace in and for said county, &c. ;
DECEMBER TERM 1846. 357
Cantril v. The People.
and then proceeds to charge the defendant in the usual form,
with obstructing the constable in the execution of the said
process.
Upon the trial of the case, the defendant moved the court
to quash the indictment, which the court refused to do, but
proceeded to trial and judgment against him. The refusal
of this motion, overruling of a motion in arrest of judg-
ment, the refusal of a new trial, and also the instructions
given by the court to the jury, and the refusal of those asked
for by the defendant are each assigned for error.
No error is perceived in the opinion of the court, either
in the giving or in the refusal of the instructions referred to.
But the judgment must be reversed because of the imper-
fection of the indictment. The process charged to be in the
hands of the constable is not set out, nor is it alleged to be
a lawful process, or so described as to show it to be so. The
Probate court is one of limited jurisdiction. It must, there-
fore, appear that in issuing the execution, it acted within the
sphere of its authority. This is not shown. It is merely
stated that a certain execution from the office of S. M. Hub-
bard, Probate Justice of the Peace, &c, was placed in the
hands of the constable, &c. If this and all the other charges
in the indictment were admitted, it would not necessarily
follow that the defendant was guilty, for the execution may
have issued upon a judgment in an action of slander, or upon
one for a greater amount than the Probate Justice had juris-
diction of. (a)
The judgment of the court below is reversed.
Judgment reversed.
(€) Ante 80.
358 SUPREME COURT.
Ferguson v. Miles.
John W. Ferguson, plaintiff in error, v. Jesse Miles, de-
fendant in error.
Error to Peoria.
After the expiration of a rule to plead in an action ot ejectment, the Circuit
Court may, in its discertion, grant an application for leave to plead, and its
decision cannot be assigned as error.
To render a conveyance operative, a delivery to the grantee is essential, though,
in many cases, where the deed is supposed to be for the benefit of the| grantee,
the law will, in the absence of proof to the coutrary, presume his assent to
the delivery to a stranger, (a)
It is a general rule, that a party will not be allowed to give parol evidence of
the contents of a paper in the possession of his adversery, unless he has
given him or his counsel reasonable notice to produce it on the trial. Bnt if
a deed has been recorded, a transcript may be introduced, the party swearing
that the original was not in his custody, and was beyond his control; or if a
party has voluntarily exhibited his deed in evidence, the instrument is under
the control of the Court, and no notice is required to produce it. (b)
The law is well settled, that for the advancement of a right and the furtherance
of justice, and where the rights of third persons are not to be injuriously
affected, a deed will have relation to and take effect from the time the grantee
was entitled to receive it.
In an action of ejectment instituted by'the purchaser at a sheriff's sale against
the defendant in the execution, the defendant cannot controvert the title.
The plaintiff is only required to produce the judgment, execution and sher-
iff's deed. The tenant who goes into possession subsequent to the sale is in
no better situation, is estopped from denying the title of his landlord, and,
consequently, thejtitle acquired under the judgment But if the tenant went
into possession before the lien accrued, then the plaintiff, to eject him, must
show that the tenancy his expired. It is only when the action is brought
against a stranger, that the plaintiff must prove that the judgment debtor had
actual possession of the premises, or title thereto, at the rendition of the
judgment, or date of the levy.
Ejectment in the Peoria Circuit Court, brought by the
plaintiff in error against the defendant in error, and heard
before the Hon. John D. Caton and a jury, at the October
term 1846. Verdict and judgment for the defendant below.
The evidence submitted to the jury is substantially set
forth in the Opinion of the Court.
E. N. Powell, for the plaintiff in error.
1. In an action of ejectment by a person claiming under
a judgment and sheriff's deed, if the suit be against the judg-
fa) Walker vs. Walker, 42 111. R. 311.
(6) Bowman vs. Wettig, 39111. R. 422.
DECEMBER TERM 1846. 359
Ferguson v. Miles.
lnent debtor, he need only show the judgment, execution and
sheriff's deed. But if the suit be against a person claiming
under the judgment debtor, he must, in addition, show that
the defendant came into possession under the judgment debt-
or subsequent to the judgment. Adams on Eject. 301, and
n. 1. And if the property be in the adverse possession of a
third person, then he must show a title in the judgment
debtor. lb.
2. The declarations of one in possession of land, as to the
nature of his title, are evidence against him. 4 Cowen, 587 ;
Tnompson v. Robertson, 4 Johns. 230, and note.
3. The instruction asked for by the plaintiff, and refused
to be given by the court, should have been given, the proof
being clear that the defendant came into the possession
under Morton, as his tenant. No other title need be proved.
4. There being no affidavit, or any excuse shown by the
defendant for not complying with the rule to plead, the
court erred in permitting the defendant to file his plea.
Kelly v. Inman, 3 Scam. 28.
5. The court erred in excluding the tax deed of May
11th, 1843, as the court assumed the power of judging of a
fact which belonged to the jury alone. This deed was prop-
erly before the jury, and it was for the jury to determine
from the evidence, under the instruction of the court,
whether it was void or not.
6. The title of Morton to the premises in question was a
vested title when the time for redemption had expired, -which
was before the rendition of the judgment against him in favor
of Hill. And a deed of a sheriff for lands sold on execution,
although made long after the time when the purchaser was
entitled to a deed, will relate back to the time when the
purchaser might have demanded his deed. Jackson v.
McMichael, 3 Cowen, 75 ; Jackson v. Bull, 1 Johns.
Cases, 81, 85 ; 3 Caines, 262 ; Jackson v. Bard, 4 Johns,
234'; Heath v. Ross, 12 Johns, 140; 15 do 306; Jackson
v. Dickenson, 309 ; 20 Johns. 3 ; 4 Wend. 494 ; Klock v. Cronk-
hite, 1 Hill's (N. Y.) R. 107 ; Scribner v. Lockwood, 9 Ohio,
184 ; Boyd's Lessee v. Longworth, 11 Ohio, 235.
360 SUPREME COURT.
Ferguson v. Miles.
The plaintiff, therefore, having laid the proper foundation
for the introduction of said deed, by showing the judgment
and precept, the court most manifestly erred in excluding
as evidence the said deed, dated, June 21st, 1844, when of-
fered as evidence by the plaintiff.
7. The revenue laws have placed the judgment against
lands, and all the proceedings under it, precisely on the
same footing as any other judgment. Consequently, the
same doctrine of relation of a sheriff's deed would be the
same under a sale of a tax judgment as under a sale of any
other. This court, in several cases, have so construed
these laws. Hinman v. Pope, 1 Gilman, 13 L ; Bestor v.
Powell, 2 do. 119 ; Atkins v. Hinman, lb. 437.
8. There can be no difference between the two kinds of
sale and the rights of the purchasers. The time for 
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